STEVEN E. HOSHAW, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Steven Hoshaw appealed the revocation of his probation, challenging four grounds cited by the trial court. The Florida Third District Court of Appeal reversed the revocation as to three grounds and remanded for reconsideration of the fourth ground, finding that several violations were legally insufficient to support revocation.
The court reversed revocation on the first three grounds as legally insufficient. The law does not require futile acts such as seeking consent before finding employment after termination. Late reports that are later filed and accepted do not constitute an ongoing violation. An unmarked condition on a standard probation form is not a valid probation condition. The court remanded the fourth ground for the trial court to determine whether revocation was appropriate in light of the nolle prosequi.
[1] A probation violation cannot be based on a requirement that is not a condition of probation.
[2] A probationer is not required to perform a futile act, such as seeking consent for a new job after being fired.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The law does not require futile acts.”
Establishes that Hoshaw could not be required to seek permission to change employment after he was fired, as doing so would be futile.
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Join FLexlaw to unlock all legal intelligenceHoshaw was on probation when the trial court sought to revoke it based on four grounds: (1) changing employment without consent after being fired; (2)…
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PER CURIAM.
Steven Hoshaw appeals from an order revoking his probation. We reverse the order of revocation as to three of the grounds cited by the trial court and remand for further proceedings as to the fourth ground.
The trial court’s first ground for revoking probation was that Hoshaw had changed employment without the consent of his probation officer. However, Hoshaw testified at the revocation hearing that he had been fired from his job. He did not seek the consent of his probation officer before finding another job because, as he said, “I had no choice in the matter of losing the job.” The law does not require futile acts. Haimovitz v. Robb, 130 Fla. 844, 178 So. 827 (1937). The trial court erred in revoking Hoshaw’s probation on the first ground.
The trial court also erred in revoking Hoshaw’s probation for failure to make monthly reports for three months. At the time of the revocation hearing, Hoshaw was current with his reports and his probation officer had accepted them. Once Ho-shaw’s late reports had been filed and accepted, late filing no longer amounted to a probation violation. See Hilton v. State, 469 So. 2d 932 (Fla. 3d DCA 1985) (order of revocation reversed where probation officer did not accept reports which defendant delivered for filing before the revocation hearing).
The trial court further erred when it found that Hoshaw had failed to complete outpatient treatment under the Mentally Disordered Sex Offender Program. This finding was fundamentally flawed because the trial court never ordered Hoshaw to complete an MDSO program as a condition of probation. The sentencing court did not order such treatment and did not initial the condition on the standard probation form. An unmarked condition on a standard probation form is not a condition of probation, Croteau v. State, 334 So. 2d 577 (Fla.1976), and cannot, therefore, support revocation of probation.
The last ground1 for revoking Ho-shaw’s probation was that in 1986 he was charged with leaving the scene of an accident which involved personal injury. Ho-shaw admits that the charge was properly proven at the revocation hearing and would support a revocation of probation. However, because three of the four charged violations are insufficient to support the order of revocation and because the state nolle prossed the charges against Hoshaw stemming from the accident, we remand this cause to the trial court to determine whether Hoshaw’s probation should be revoked on this last ground. See Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980).
REVERSED AND REMANDED WITH DIRECTIONS.
. At the revocation hearing, the state abandoned the charge that Hoshaw was $20 in arrears on his supervision payments. The trial court's in-elusion in its order of that abandoned charge was clearly erroneous. E.g., Wright v. State, 494 So. 2d 522 (Fla. 3d DCA 1986).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Narvaez v. State, 674 So. 2d 868 (Fla. 2d DCA 1996)…ounce from the written revocation order. Further, Narvaez admitted, and the trial court found, that he violated condition (A). This finding was fundamental error because Narvaez was never ordered to comply with this condition. See Hoshaw v. State, 533 So. 2d 886 (Fla. 3d DCA 1988). Therefore, the reference to condition (A) should also be stricken from the written revocation order. Accordingly, we reverse and remand with instructions to strike the reference to all conditions except condition 9 and conditio…
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Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000)…be violated on the basis of a late-filed report. The Third District has held that once the defendant’s late-filed reports have been accepted by the probation officer, the delay in filing cannot constitute a probation violation. See Hoshaw v. State, 533 So. 2d 886 (Fla. 3d DCA 1988). The First District, however, has held to the contrary in Jordan. We suggest that this issue should be resolved on the unique facts of each case, because elements of reliance sufficient to establish a defense may exist in some sit…
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Gore v. Harris, 772 So. 2d 1243 (Fla. 2000)…ed by December 12, 2000. See 3 U.S.C. § 5. This Court is “not required to do a useless act nor are we required to act if it is impossible for us to grant effectual relief.” State v. Strasser, 445 So. 2d 322, 322 (Fla.1983). See also Hoshaw v. State, 533 So. 2d 886, 887 (Fla. 3d DCA 1988) (“The law does not require futile acts.”); International Fidelity Ins. Co. v. Prestige Rent-A-Car, Inc., 715 So. 2d 1025, 1028 (Fla. 5th DCA 1998) (“Florida law does not require trial courts to enter orders which are impossib…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Croteau v. State, 334 So. 2d 577 (Fla. 1976)
- Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)
- Haimovitz v. Robb, 130 Fla. 844 (Fla. 1937)
- Mayflower Inv. Co. v. Brill, 131 Fla. 70 (Fla. 1938)
- Wright v. State, 494 So. 2d 522 (Fla. 3d DCA 1986)
- Hilton v. State, 469 So. 2d 932 (Fla. 3d DCA 1985)
- Chamber OF Tourism OF the Americas, Inc. v. Miss Am. Latina, Inc., 469 So. 2d 932 (Fla. 3d DCA 1985)