ALBERT YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Albert Young appealed the revocation of his probation for failing to complete a court-ordered mentally disordered sex offender (MDSO) program. The Second District Court of Appeal reversed, holding that Young's violation was not willful and substantial because the probation condition was too vague and Young expressed willingness to comply with clarified requirements.
The court reversed the probation revocation because Young's violation was not willful and substantial. The probation condition was impermissibly vague regarding the timeframe for completion, number of opportunities permitted, and deadline within the 18-year term, and Young demonstrated a genuine willingness to comply with the condition if properly clarified.
[1] Hearsay evidence cannot be the sole basis for finding a violation of probation.
[2] Failure to complete a counseling program is insufficient to establish a willful and substantial violation of probation if the condition does not specify a time for comple…
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Join FLexlaw to unlock all legal intelligence“A violation which triggers 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.”
Establishes the legal standard for probation revocation that the trial court failed to meet.
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Join FLexlaw to unlock all legal intelligenceYoung pleaded guilty to sexual activity with a child aged 12-18 and received a split sentence of 20 years in prison (suspended after 2 years) followed…
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FRANK, Acting Chief Judge.
Albert Young, who had pleaded guilty to engaging in sexual activity with a child between the ages of twelve and eighteen, has appealed from an order revoking his probation on the ground that he failed to complete a mentally disordered sex offender program. Because his violation of probation was not willful or substantial, we reverse.
Pursuant to a plea agreement Young was sentenced to a true split sentence— twenty years in prison, to be suspended after two years, with the remaining eighteen years on probation. See Poore v. State, 531 So. 2d 161 (Fla.1988). Condition number 15 of the order placing Young on probation stated: “Complete MDSO [mentally disordered sex offender] program.” On June 20, 1989 an affidavit of violation of probation was filed stating that Young had “failed to complete the Mentally Disordered Sex Offender Program as court ordered on November 16, 1987, by being unsuccessfully terminated from the SHARE [Sexual Health: Awareness, Rehabilitation, Education] program by Dr. Leo Cotter as of 3/17/89 due to the probationer’s denial of ever engaging in this sexual offense in question.”
At a hearing Young admitted that he had been released from the SHARE program, but he requested a thirty day continuance to enter another sex offender program. He explained that essentially he had a conflict with Dr. Cotter, who ran the program. At a later hearing, Young’s attorney presented the court with a letter from Dr. Cotter, who was willing again to accept him in the program although he was nonetheless somewhat skeptical about the possibilities for Young’s success. Young’s attorney stated that Young, after reflecting upon his previous behavior in the program, was willing to be cooperative if reaccepted.
“A violation which triggers a revocation of probation must be willful and substan tial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence.” Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988). In spite of Young's admission to the violation for the narrow reason that he had actually been dismissed from the SHARE program, he expressed a willingness to complete some form of MDSO counseling. The probation order did not specify the period within which Young was to complete the program, how many chances he would be given to obtain success, or when within the eighteen year term of his suspended sentence he was required to complete the program. Because the order was so nonspecific, and because Young professed his desire to complete this condition of probation in some form acceptable to him, we have determined from the totality of the several considerations that the trial court abused its discretion in revoking Young’s probation.
Accordingly, we reverse the order under review and remand this cause to the trial court to reinstate Young’s probation and to clarify the requirements of condition 15.
HALL and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (32 total)
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VAN Wagner v. State, 677 So. 2d 314 (Fla. 1st DCA 1996)…d, 626 So. 2d 208 (Fla.1993) (probationer who failed to perform community service had reported “to the community service worksite many times”). “Any violation triggering a revocation of probation must be ‘willful’ and ‘substantial,’ Young v. State, 566 So. 2d 69, 70 (Fla. 2d DCA 1990).” Rainer v. State, 657 So. 2d 1230, 1230 (Fla. 4th DCA 1995) (failure to complete drug rehabilitation 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.…
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Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)…obation condition was willful); Robinson v. State, 744 So. 2d 1188, 1189 (Fla. 2d DCA 1999) (holding purely hearsay evidence that defendant was aware of requirement to report was insufficient to support finding of willful violation); Young v. State, 566 So. 2d 69, 69-70 (Fla. 2d DCA 1990) (holding trial court abused its discretion in revoking probation where greater weight of evidence did not show violation was willful); Molina, 520 So. 2d at 321 (“This court has refused to find technical violations sufficie…1 / 2
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Steiner v. State, 604 So. 2d 1265 (Fla. 4th DCA 1992)…a violation which triggers a revocation of probation must be both willful and substantial, and the willful and substantial nature of the violation must be supported by the greater weight of the evidence. Kolovrat, 574 So. 2d at 297; Young v. State, 566 So. 2d 69, 69-70 (Fla. 2d DCA 1990); Hightower, 529 So. 2d at 727. Lastly, the state has the burden to establish that the probationer willfully violated his/her terms of probation. Howard v. State, 484 So. 2d 1232, 1233 (Fla.1986); Ware v. State, 575 So. 2d…
Previewing 3 of 32 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988)