JOHNNY LEE SINGLETARY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probation violation must be willful, and the state failed to prove willfulness when the appellant was not informed of the specific condition violated.
Appellant was placed on probation with standard drug and alcohol clauses, but these were never explained to him. He was later charged with violating p…
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THREADGILL, Judge.
Appellant contends that the trial court erred in revoking his probation on grounds he was drinking beer as he was never prohibited from drinking alcoholic beverages as a condition of his probation. We agree and reverse.
Appellant was placed on probation for five years for auto theft. At the sentencing hearing, the trial court recited that appellant was to be evaluated for alcohol and drug abuse and that the probation order was to “contain the normal standard drug and alcohol clauses.” However, nothing in the record indicates that the court or the probation officer explained those clauses to appellant. Appellant was subsequently charged with violating his probation by consuming beer two days after being placed on probation.
To justify revocation of probation, the violation must be willful and substantial and supported by the greater weight of the evidence. Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988); Molina v. State, 520 So. 2d 320 (Fla. 2d DCA 1988). The evidence before this court clearly shows that appellant was never informed of this condition of probation by the sentencing judge or by the probation officer prior to the violation. The state therefore failed to prove that a willful violation of probation had occurred.
Accordingly, we reverse appellant’s conviction and sentence and remand with directions to reinstate appellant’s probation.
REVERSED AND REMANDED.
CAMPBELL, C.J., and PARKER, J., concur.
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Citator
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McCARRICK v. State, 553 So. 2d 1373 (Fla. 2d DCA 1989)…a criminal trial. Wheeler v. State, 344 So. 2d 630 (Fla.2d DCA 1977). However, to justify revocation the court must be satisfied the violation was willful and substantial and was supported by the greater weight of the evidence. Singletary v. State, 537 So. 2d 674 (Fla.2d DCA 1989); Hightower v. State, 529 So. 2d 726 (Fla.2d DCA 1988). The probation officer who testified admitted she did not know McCarrick nor have any personal knowledge of his case. McCarrick’s uncontroverted testimony denied any violations…
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Smith v. Fla. Dep't of Corr., 255 So. 3d 916 (Fla. 2d DCA 2018)…ocess concerns. See, e.g., McRae v. State, 88 So. 3d 384, 385 (Fla. 2d DCA 2012) (holding that revocation of probation based on an uncharged violation deprives the defendant of due process and constitutes fundamental error); Singletary v. State, 537 So. 2d 674, 674-75 (Fla. 2d DCA 1989) (recognizing that the minimum procedural safeguards imposed by due process include the probationer's right to notice of the claimed violations of his probation). Mr. Smith received notice and an opportunity to be heard…
Authorities Cited
- Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988)
- Piper v. State, 520 So. 2d 320 (Fla. 2d DCA 1988)
- Molina v. State, 520 So. 2d 320 (Fla. 2d DCA 1988)