JAMES CHARLES SCOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Charles Scott appealed the revocation of his probation and resulting 15-year sentence for a prior sexual offense. The court reversed, holding that a chance encounter with his stepdaughter at a public park—where he took precautions to avoid her and left immediately upon notification of her presence—did not constitute a willful violation of his probation condition prohibiting contact with his stepchildren.
The court held that there was insufficient proof of a willful violation of the probation condition. Although the prohibition against contact extended beyond physical contact and required Scott to take reasonable steps to avoid the stepchildren's presence, Scott's reasonable precautions, immediate departure upon notification, and lack of initiation of the encounter meant he did not willfully violate the condition.
[1] A willful violation of probation requires proof that the defendant intentionally disregarded or was indifferent to the terms of probation.
[2] A defendant's failure to comply with a probation condition may not be considered willful if the defendant made reasonable efforts to comply.
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Join FLexlaw to unlock all legal intelligence“In achieving the revocation of a defendant's probation, it is incumbent upon the state to establish that the defendant willfully violated the terms of his probation.”
Establishes the legal standard requiring proof of willful violation for probation revocation.
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Join FLexlaw to unlock all legal intelligenceScott was on probation for carnal intercourse with an unmarried person under 18, subject to a special condition prohibiting contact with his stepchild…
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GRIMES, Acting Chief Judge.
Appellant seeks review of an order revoking his probation and sentencing him to fifteen years' imprisonment for carnal intercourse with an unmarried person under the age of eighteen. Appellant was found to have violated a special condition of his probation which prohibited him from having “contact with his stepchildren.”
The alleged violation took place when appellant and his fiancee were playing ball with her two sons at a public park. Appellant was aware that his stepdaughter frequently participated in softball games at the park. He said he searched the parking lot to make certain that his ex-wife’s automobile was not there before stopping at the park. The “contact” occurred sometime later when Theresa, one of the stepdaughters, made eye contact with appellant at a distance estimated to be ninety-eight feet. She said she thought appellant had seen her, but appellant testified that he was not aware of the stepchildren’s presence until informed by a deputy sheriff who had been summoned to the park by appellant’s ex-wife. After being informed of the stepchildren’s presence at the park and requested to leave by the deputy sheriff, appellant, along with his fiancee and her two children, left the park.
In achieving the revocation of a defendant’s probation, it is incumbent upon the state to establish that the defendant willfully violated the terms of his probation. Hudson v. State, 425 So. 2d 1166 (Fla. 2d DCA 1983). Where a defendant makes reasonable efforts to comply with probation conditions, his failure to do so may not be willful. Gardner v. State, 365 So. 2d 1053 (Fla. 4th DCA 1978).
Certainly, the prohibition against appellant having contact with his stepchildren was intended to limit more than physical contact. To comply with this condition, appellant was obligated to take reasonable steps to avoid coming into their presence. Arguably, appellant was running some risk of violating probation in visiting the park. On the other hand, he should not be penalized because of an inadvertent meeting which was not precipitated by his own conduct. Appellant first took reasonable precautions to determine if the stepchildren were playing at the park, and on being informed of their presence, he immediately left the area. He did nothing to initiate the eye contact with Theresa. Moreover, there is no suggestion of prior instances in which appellant had positioned himself in locations where he might be observed by the stepchildren. In the final analysis, we hold that there was insufficient proof of appellant’s willful violation of the special condition of his probation.
Therefore, we reverse the order of revocation and the consequent judgment and sentence. The cause is remanded with instructions to restore appellant to his original term of probation.
CAMPBELL and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Steiner v. State, 604 So. 2d 1265 (Fla. 4th DCA 1992)…e Second District reversed, holding that the state failed in its burden of proof to show that Hudson willfully violated the terms of his probation where he or his mother could have mistakenly placed the call. Id. at- 1167. [*1268] In Scott v. State, 485 So. 2d 40 (Fla. 2d DCA 1986), the Second District Court of Appeal held that the probationer did not violate a condition of his probation prohibiting him from seeing his stepchildren when one of his stepchildren saw him in the park. In Scott, the probationer w…
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Garcia v. State, 701 So. 2d 607 (Fla. 2d DCA 1997)…ss or negligent conduct of a probationer rises to the level of deliberateness. However, the evidence in the instant case indicates that appellant was making reasonable attempts to follow the instructions of his probation officer. See Scott v. State, 485 So. 2d 40 (Fla. 2d DCA 1986) (stating that if a probationer makes reasonable efforts to comply with a condition of probation, failure to comply will not be deemed a willful violation). Moreover, the [*610] evidence presented by the State and the affidavit of…
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Jacobsen v. State, 536 So. 2d 373 (Fla. 2d DCA 1988)…d 165 (Fla. 2d DCA 1987); McPike v. State, 473 So. 2d 291 (Fla. 2d DCA 1985). Jacobsen finally maintains, and we agree, that it is incumbent upon the state to establish that Jacobsen wilfully violated the terms of his probation. See Scott v. State, 485 So. 2d 40 (Fla. 2d DCA 1986). Under the facts presented at the hearing, it cannot be said that his violation was wilful. The evidence adduced at the violation hearing reflects a good-faith effort by Jacobsen to comply with the pronouncement of the trial court…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gardner v. State, 365 So. 2d 1053 (Fla. 4th DCA 1978)
- Hudson v. State, 425 So. 2d 1166 (Fla. 2d DCA 1983)