STEVEN D. JACOBSEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jacobsen appeals the revocation of his probation for failing to leave Lee County by noon on November 6, 1987. The court reversed the revocation because the state failed to prove that Jacobsen's violation was willful, as he made reasonable efforts to comply but was prevented by circumstances beyond his control.
The court reversed the revocation because the state failed to establish that Jacobsen's violation was willful. Where a defendant makes reasonable efforts to comply with probation conditions and fails due to circumstances beyond his control, the violation cannot be deemed willful.
[1] A trial court's failure to reduce a probation condition to writing does not constitute reversible error if the defendant was clearly apprised of and acknowledged the cond…
[2] A defendant waives the right to challenge the propriety of a probation condition by failing to raise a contemporaneous objection at the hearing where the condition was im…
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Join FLexlaw to unlock all legal intelligence“it is incumbent upon the state to establish that Jacobsen wilfully violated the terms of his probation”
Establishes the legal standard that probation violations must be willful, placing the burden on the state
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Join FLexlaw to unlock all legal intelligenceJacobsen was on probation after pleading no contest to burglary charges. At a hearing on November 5, 1987, the trial judge orally ordered him to leave…
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PARKER, Judge.
Jacobsen appeals the trial court’s order revoking his probation and imposing a sentence that is a departure upward from the sentencing guidelines. We address only the revocation of probation since that issue alone requires reversal.
Jacobsen originally pleaded no contest to two charges of burglary of a dwelling. After receiving probation on both charges, a violation of probation resulted in a prison sentence on count I, which was completed, followed by a ten-year term of probation on count II. This appeal stems from Jacob-sen’s violation of his probation under count II. On November 5, 1987, Jacobsen pleaded no contest1 to violating his probation, at which time he was reinstated to a ten-year term of probation. One of the terms of probation was that Jacobsen leave and remain out of Lee County. The trial judge informed Jacobsen that he was to contact the probation office in Orlando no later than November 13, 1987. The record contains no written order of revocation of Ja-cobsen’s probation or a written probation order reinstating Jacobsen’s probation. At the close of the revocation hearing, the following transpired:
[Prosecutor]: Judge, did you also put a time limit on when he has to be out of Lee County?
Court: Noon, You get out a[t] 9:00 and you’re on your way by noon, all right? Defendant: I could leave today. I’ll just hitchhike out of town.
Court: No, you won’t leave today. You’re leaving tomorrow morning. Thank you. Good bye.
Another affidavit for violation of probation was filed November 12, 1987, and alleged:
Violation of the Special Condition of his Probation which ordered that he leave Lee County by Noon on November 6, 1987, as is evidenced by his failure to leave Lee County by that date and time.
After a hearing on this violation, Jacob-sen’s probation was revoked, and.he was sentenced to ten years imprisonment. Ja-cobsen testified to the following events at the hearing.
Jacobsen was released from jail at 9:10 a.m. on the day following the hearing. After cashing a check for $400, he proceeded to the Trailways bus station where he observed a sign that stated the only bus to Orlando left at 8:15 a.m. Jacobsen asked a ticket agent whether the bus was the only one to Orlando, and the agent responded affirmatively. Jacobsen purchased a ticket for the 8:15 bus leaving the following morning. Jacobsen intended to get a hotel room for the evening. For most of the day, Jacobsen stayed at the bus station. At approximately 4:30 p.m., Jacobsen met a friend at the station who asked if Jacobsen would come to another friend’s house in Cape Coral. Jacobsen went to the house with the friend and later to a restaurant. According to Jacobsen, the last event he remembered that evening was leaving the restaurant. The next memory Jacobsen had was awakening the following morning with his hands and legs bound together. Jacobsen had been stripped of his money, wallet, and identification and had suffered head injuries. Jacobsen was then taken to the hospital and placed in intensive care. He remained in the hospital for the next nine days.
Carroll Lister, a ticket agent at the Trailways bus station, testified that a sign in the bus terminal listed a direct bus to Orlando leaving at 8:15 a.m. Other departures for Orlando were not posted on the sign because they were not direct trips. Lister identified Jacobsen as having been at the bus station. Lister also testified that ticket sales are not registered by name; therefore, it could not be verified whether Jacobsen purchased a ticket. According to Lister, if asked, he would inform a customer that Greyhound also had buses traveling to given destinations if Trailways did not have a bus leaving at the appropriate time. Lister was aware that Greyhound had two buses leaving for Orlando before noon.
Sue Wilson, the probation officer, testified that she discussed with Jacobsen his failure to leave Lee County. Jacobsen informed Wilson that he had purchased a bus ticket but that he failed to use it and that the last thing he remembered was being in a bar in Cape Coral with a substantial amount of cash.
Jacobsen argues that the condition of probation requiring him to leave the county by a certain time of day was unen forceable because that condition was never reduced to writing in an order of probation. That argument fails because Jacobsen was clearly apprised of the condition at a hearing where he was present and acknowledged this condition of his probation. The absence of the written order is not reversible error. Morgan v. State, 341 So. 2d 201 (Fla. 2d DCA 1976). But see Warren v. State, 499 So. 2d 55 (Fla. 4th DCA 1986).
Jacobsen also argues that the condition imposed was improper. While we agree this condition does not meet the test required to constitute a valid condition of probation as stated in Rodriguez v. State,
378 So. 2d 7 (Fla. 2d DCA 1979), Jacobsen’s failure to raise a contemporaneous objection to the imposition of that condition at the hearing prohibits him from raising the challenge now. Burns v. State, 513 So. 2d 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. The events which ensued to prevent his departure were not within his control. Where a defendant makes reasonable efforts to comply with the conditions of probation, his failure to so comply may not be wilful. Id. at 41.
REVERSED AND REMANDED.
SCHEB, A.C.J., and THREADGILL, J., concur. . Section 948.06, Florida Statutes (1984) does not envision a no contest plea to a violation of probation or community control. Upon the court advising the defendant of the violation, the defendant must admit or deny the charge. If admitted the trial judge schedules a sentencing hearing and imposes a sentence. If the charge is denied, a hearing on the violation shall follow as soon as is practicable.
. In Rodriguez, this court stated:
In determining whether a condition of probation is reasonably related to rehabilitation, we believe that a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.
378 So. 2d at 9 (citations omitted).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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VAN Wagner v. State, 677 So. 2d 314 (Fla. 1st DCA 1996)…; Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992) (probationer’s unsuccessful, “quixotic and inept” attempt to attend classes for sex offenders precluded finding of willful violation of probationary term requiring attendance); Jacobsen v. State, 536 So. 2d 373 (Fla. 2d DCA 1988) (defendant’s failure to leave county by a specified time not grounds for revocation when he made reasonable efforts to comply); Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980) (no willful violation of condition requiring persona…
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Steiner v. State, 604 So. 2d 1265 (Fla. 4th DCA 1992)…0 (despite the fact probationer was dismissed from the program, it was an abuse of discretion to revoke probation where probationer failed to complete a MDSO program, but had expressed a willingness to enter another MDSO program); Jacobsen v. State, 536 So. 2d 373, 375 (Fla. 2d DCA 1988) (state failed to establish that probationer willfully violated the terms of his probation by not leaving the county when he was ordered to, where probationer made a good faith effort to comply with the condition). In Hudson…
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Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992)…willfully violated its terms. Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978). However inept and negligent his conduct, the record does not support the conclusion that Stevens willfully or deliberately missed the meeting. See Jacobsen v. State, 536 So. 2d 373 (Fla. 2d DCA 1988) (no willful violation of condition that defendant leave the county by a specific time when he made reasonable efforts to comply by purchasing a bus ticket, but was unable to depart because he was hospitalized for injuries received…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)
- Scott v. State, 485 So. 2d 40 (Fla. 2d DCA 1986)
- Donnie Warren v. State, 499 So. 2d 55 (Fla. 4th DCA 1986)
- McPIKE v. State, 473 So. 2d 291 (Fla. 2d DCA 1985)
- Morgan v. State, 341 So. 2d 201 (Fla. 2d DCA 1976)
- Burns v. State, 513 So. 2d 165 (Fla. 2d DCA 1987)