JOSEPH DRAYTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Drayton appeals his thirty-month sentence imposed for violating probation conditions. The appellate court reverses, finding insufficient evidence that any probation violations were willful and substantial, and remands with instructions to reinstate his probation.
The court reversed the probation revocation, finding insufficient evidence of willful violations. The trial court erred in finding Drayton guilty of violating condition (1) because he was unable to file the monthly report within the required time period due to a holiday and custody, and erred in finding him guilty of condition (2) because there was no evidence he had the ability to pay supervision costs.
[1] A violation triggering a revocation of probation must be willful and substantial.
[2] A probationer's failure to submit a monthly report is not a willful violation if the probationer was in custody during the reporting period.
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Join FLexlaw to unlock all legal intelligence“The violation triggering a revocation of probation must be willful and substantial.”
Establishes the legal standard for probation revocation that the trial court must apply
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Join FLexlaw to unlock all legal intelligenceDrayton was placed on probation on November 1, 1984, for aggravated assault. He was charged with violating two probation conditions: failing to submit…
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SCHOONOVER, Acting Chief Judge.
Appellant, Joseph Drayton, appeals from a thirty month sentence imposed upon him for violating probation. We reverse.
On November 1, 1984, appellant was placed on probation for the offense of aggravated assault. On January 2, 1985, he was taken into custody and was charged with aggravated battery. On January 25, 1985, appellant was charged with violating condition (1) of his probation by failing to submit a monthly report on or before January 5, 1985, and condition (2) by failing to pay costs of supervision. He was also charged with two violations of condition (5) by being in possession of a weapon without the consent of his probation officer and by being arrested for aggravated battery after stabbing someone with a knife.
At the probation revocation hearing, the state nolprossed the aggravated battery charge and presented evidence only on the first two conditions appellant had been charged with violating. Appellant’s probation officer testified that appellant had failed to report to the probation office and submit a written monthly report between the 1st and 5th of January and that appellant failed to pay the costs of supervision for the months of November and December. The probation officer also testified that although he had been told that appellant was working, he had no knowledge as to whether appellant was earning an amount sufficient to pay the costs of supervision. Appellant testified that he had been unable to report to his probation officer and complete the written report within the required time period because January 1 was a holiday and he had been in custody from January 2 through January 5, 1985. He also testified that he had been unem ployed during the months of November and December. At the conclusion of the hearing, the court orally found appellant guilty of violating conditions (1) and (2) of his probation. A written order of revocation was subsequently filed setting forth the court’s findings that, in addition to violating conditions (1) and (2), appellant was guilty of two violations of condition (5). The written order also stated that appellant pled guilty on July 18, 1985. Appellant’s probation was revoked, and he was sentenced to serve thirty months in state prison. This appeal timely followed.
Appellant contends there was insufficient evidence to support the revocation of his probation. We agree.
The violation triggering a revocation of probation must be willful and substantial. Davidson v. State, 419 So. 2d 728 (Fla. 2d DCA 1982). The probation officer testified that appellant violated condition (1) by failing to report to the probation office and submit his monthly report. In order to be timely, the report had to be submitted by the fifth day of January. January 1, however, was a legal holiday, and appellant was in custody between January 2 and January 5. There was, therefore, no evidence from which the trial court could properly conclude that appellant had the ability to file the monthly report but willfully failed to do so. See Davidson; Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980).
The trial court also erred in finding appellant guilty of violating condition (2) by failing to pay costs of supervision. Both in his affidavit alleging the violation and in his testimony, the probation officer stated he did not know whether appellant had the ability to pay the costs of supervision. The appellant’s testimony indicates, moreover, that he did not have the ability to pay. Appellant’s probation was therefore improperly revoked for violating this condition. See Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979); Shaw.
Finally, we find the trial court erred in entering a written order indicating that appellant had pled guilty to the violations and that his probation had been revoked on the additional violations of condition (5). Underwood v. State, 455 So. 2d 1133 (Fla. 2d DCA 1984); Sing Eng v. State, 350 So. 2d 559 (Fla. 2d DCA 1977). In view of our disposition of the case, however, it is not necessary for us to order those findings stricken from the order of revocation.
We, accordingly, reverse and remand with instructions to reinstate appellant’s probation.
Reversed and remanded.
LEHAN and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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VAN Wagner v. State, 677 So. 2d 314 (Fla. 1st DCA 1996)…habilitation program not shown to be willful); Bell v. State, 643 So. 2d 674 (Fla. 1st DCA 1994); Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991) (unemployed probationer’s failure to make restitution not shown to be willful); Drayton v. State, 490 So. 2d 229, 230 (Fla. 2d DCA 1986) (“no evidence from which the trial court could properly conclude that appellant had the ability to file the monthly report but willfully failed to do so”). Where a probationer makes reasonable efforts to comply with a.condit…
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Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)…t 321 (“This court has refused to find technical violations sufficient to justify revocation. When the revocation is based on failure to complete a program, we have required a showing that the failure is the probationer’s fault.”); Drayton v. State, 490 So. 2d 229, 229 (Fla. 2d DCA 1986) (“There was ... no evidence from which the trial court could properly conclude that appellant had the ability to file the monthly report but willfully failed to do so.”); Davidson, 419 [*623] So. 2d at 729 (reversing revocati…
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Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988)…a revocation of probation must be willful and substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence. Molina v. State, 520 So. 2d 320 (Fla. 2d DCA 1988); see also Drayton v. State, 490 So. 2d 229 (Fla. 2d DCA 1986). The record before this court is not clear as to whether High-tower was advised of the condition that he report to a probation officer. The lack of clarity on this point is supported by the absence of Hightower’s signature on the…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980)
- Underwood v. State, 455 So. 2d 1133 (Fla. 2d DCA 1984)
- ENG v. State, 350 So. 2d 559 (Fla. 2d DCA 1977)
- Davidson v. State, 419 So. 2d 728 (Fla. 2d DCA 1982)