JAMES LOVE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant's failure to comply with community control instructions was not willful and substantial, thus the revocation was erroneous.
The appellant reported to the wrong Department of Corrections office on the wrong date due to a misunderstanding about his case transfer. He believed …
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PATTERSON, Judge.
The appellant alleges error in the revocation of his community control. He argues that his failure to comply with his community control officer’s instructions was not willful and substantial. We agree and reverse.
The appellant’s community control officer testified at the violation hearing that she instructed the appellant to report to the Department of Corrections Office in Tampa on January 23, 1991. Instead, the appellant reported to the office in Marion County on January 24. The appellant testified that he had spoken to the judge and the community control officer about his having family in Marion County and he had gotten the impression that his case would be transferred there. He reported to the correct office on February 5, when it finally became clear to him that he had reported to the wrong place.
The appellant made a reasonable attempt to comply with the condition of community control. His failure to report was more the result of confusion or miscommunication than a deliberate act of misconduct. He believed he had the approval of the judge and the community control officer to report in Marion County. Thus, his violation of community control was not intentional. See Davidson v. State, 419 So. 2d 728 (Fla. 2d DCA1982).
The state has the burden of showing that a probationer’s violation is willful and substantial. Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA1988). Although a trial court has broad discretion to determine whether a term of probation has been violated, the evidence in this case does not support the court’s determination that the appellant’s actions were willful and substantial. Accordingly, we reverse the order of revocation and remand for the reinstatement of the appellant’s community control.
Reversed and remanded.
LEHAN, C.J., and PARKER, J., concur.
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Smith v. State, 711 So. 2d 100 (Fla. 1st DCA 1998)…ditions of his probation, appellant’s failure to file monthly reports from April 1996 through December 1996, after his March 1996 arrest and charge of probation violation, does not constitute a willful offense in the instant case. See Love v. State, 606 So. 2d 755 (Fla. 2d DCA 1992) (noncompliance based on confusion or miscommunieation is not willful); see also Howard v. State, 676 So. 2d 1018 (Fla. 1st DCA 1996).1 Finally, [*103] appellant’s failure to respond to a single telephone call placed at a time when…
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Howard v. State, 676 So. 2d 1018 (Fla. 1st DCA 1996)…e did not believe that any violation had occurred, we agree with appellant that the state failed to establish by the greater weight of the evidence that appellant had willfully violated either of the conditions in question. See, e.g., Love v. State, 606 So. 2d 755 (Fla. 2d DCA 1992) (noncompliance based on confusion or miseommunication not willful); Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992) (noncompliance based on ineptness or negligence not willful); Jacobsen v. State, 536 So. 2d 373 (Fla. 2d DCA 1…
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Hopewell v. State, 680 So. 2d 600 (Fla. 2d DCA 1996)…hat the evidence presented was insufficient to establish that his probation violations were willful. We agree and reverse. The state has the burden of proving by a preponderance of the evidence that probation violations are willful. Love v. State, 606 So. 2d 755 (Fla. 2d DCA 1992). However, in this case, the state failed to call the defendant’s probation officer or introduce any evidence to satisfy this burden. The only evidence presented was the defendant’s sworn testimony that he did not intentionally vio…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988)
- Davidson v. State, 419 So. 2d 728 (Fla. 2d DCA 1982)