CURTIS L. TAYLOR, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that insufficient evidence supported the revocation of the defendant's community control status.
[1] Insufficient evidence adduced to justify revocation of community control.
[2] Evidence that a defendant sought employment from a recommended agency, even if unemployed, does not establish failure to seek gainful employment.
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Join FLexlaw to unlock all legal intelligenceThe defendant's community control was revoked based on alleged failure to seek employment and leaving his residence without consent. The sole witness,…
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PER CURIAM.
This is an appeal by the defendant Curtis L. Taylor from an order revoking his community control probationary status previously imposed upon a plea of guilty to a charge of shooting or throwing a deadly missile in an occupied building or vehicle. We conclude that insufficient evidence was adduced below to justify this revocation, and, accordingly, reverse.
The trial court’s stated basis for revoking the defendant’s community control was that (1) the defendant failed to work diligently at a lawful occupation in that he failed to hold or seek gainful employment since being placed on community control, and (2) the defendant failed to remain confined to his residence in that on September 12,1986 at 8:45 P.M. and on September 13, 1986 at 5:50 P.M. and 7:45 P.M. he left his residence without the consent of his community control officer — in violation of the conditions of his community control release. There is no competent, substantial evidence in this record which supports these two findings.
Only one witness testified below at the community control violation hearing — Mr. John Henson, the defendant’s community control officer. Mr. Henson testified that the defendant, in fact, sought employment from an agency Mr. Henson recommended in Homestead, that Mr. Henson knew of no jobs which the defendant was offered but turned down, and that the defendant was unemployed at the time of the hearing. Plainly, this evidence falls woefully short of establishing that the defendant failed to seek gainful employment while on community control; on the contrary, he did quite the opposite.
Mr. Henson further testified that he went to the defendant’s residence on September 13, 1986 at 5:50 P.M. and discovered that no one was home. He returned at 7:45 P.M. that evening and this time the defendant’s girlfriend answered the door and told him the defendant had been arrested and was not home; he subsequently learned that the defendant was in jail during this time, having been arrested on September 12, 1986. Plainly, this evidence fails to establish, as it must, that the defendant voluntarily left his residence without the consent of Mr. Henson on either September 12 or September 13, 1986. Indeed, the evidence shows that the defendant was involuntarily away from his residence on these two dates, having been arrested on September 12,1986, and placed in jail. Moreover, there is no proof whatever that the defendant left his residence on these dates without Mr. Henson’s consent, prior to his being arrested.
Given this failure of proof to sustain the trial court’s revocation of community control below, we are compelled to reverse for insufficient evidence. See Haugabook v. State, 453 So. 2d 549 (Fla. 4th DCA 1984); Hudson v. State, 425 So. 2d 1166 (Fla. 2d DCA 1983); Winfield v. State, 406 So. 2d 50 (Fla. 1st DCA 1981); Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978). The order appealed from is reversed, and the cause is remanded to the trial court with directions to restore the defendant to his community control status.
Reversed and remanded.
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Anderson v. State, 711 So. 2d 106 (Fla. 4th DCA 1998)…obation office is neither willful nor a violation of probation where the probationer was arrested and incarcerated before he was scheduled to appear at the probation office. See Garcia, 701 So. 2d at 609; Frazier, 587 So. 2d at 661; Taylor v. State, 509 So. 2d 1288, 1289 (Fla. 3d DCA 1987); Drayton v. State, 490 So. 2d 229, 230 (Fla. 2d DCA 1986). Here, the only evidence offered to contradict Appellant’s testimony was the police report reflecting that Appellant was arrested at 10:06 a.m. and Appellant’s testim…
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Davis v. State, 867 So. 2d 608 (Fla. 2d DCA 2004)…ime frame addressed by the evidence, and when he was unemployed he searched for and obtained new employment. Because the evidence did not establish a violation, we reverse the trial court’s finding of a violation of condition 8. See Taylor v. State, 509 So. 2d 1288 (Fla. 3d DCA 1987). Regarding condition 12, which required Davis to remain at an approved location, the affidavit of violation alleged that on January 30, 2002, Davis was seen at a store when he should have been at the Department of Highway Safety…
Authorities Cited
- Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978)
- Murphy v. Town OF Palm Beach, 406 So. 2d 50 (Fla. 4th DCA 1981)
- Winfield v. State, 406 So. 2d 50 (Fla. 1st DCA 1981)
- Hudson v. State, 425 So. 2d 1166 (Fla. 2d DCA 1983)
- Haugabook v. State, 453 So. 2d 549 (Fla. 4th DCA 1984)