MICHAEL W. TOBIAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The trial court’s revocation of appellant’s probation, resulting in the imposition of a sentence to concurrent terms of twenty and ten years was based solely on a violation of Condition 3, which violation read:
VIOLATION OF CONDITION THREE (3) of the Orders of Community Control, by changing his residence without first procuring the consent of his Community Control Officer, and as grounds for belief that he violated his Community Control, affiant states that on or about September 13, 1993, the aforesaid did move from his approved residence at 17660 Bridle Court, Jupiter, Florida, as told to affiant by Mrs. Elizabeth Howard, aforesaid’s girlfriend’s mother, on September 16, 1993.
What the evidence established was a violation of Condition 11 — requiring that appellant remain confined to his approved residence — for which he was not charged although such charge would have fit these facts, i.e., where a defendant is gone for a brief period of time but his locations are unknown. The evidence did not support a finding that Condition 3 was violated. We therefore reverse.
GLICKSTEIN and WARNER, JJ., concur. ANSTEAD, J., dissents with opinion.
ANSTEAD, Judge,
dissenting.
I believe the evidence of appellant’s unexplained absence from his approved residence for approximately one week was sufficient to support the trial court’s finding that the appellant had improperly moved from his approved residence without permission from his probation officer.
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Johnson v. State, 668 So. 2d 240 (Fla. 1st DCA 1996)…nson did not give her mother’s address to the receptionist. Finally, the probation officer testified that Ms. Johnson “showed” on August 15, and at that time he was able to verify that she was residing at her original residence. In Tobias v. State, 641 So. 2d 194 (Fla. 4th DCA 1994), Tobias appealed the trial court’s order revoking his probation based on a finding that he had violated the same condition at issue here. Tobias had been absent from his residence for about a week. The Fourth District reversed st…
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Hodges v. State, 262 So. 3d 842 (Fla. 1st DCA 2018)…time during which the probationer’s location was unknown would not support a finding that the probationer violated a condition of probation by changing his residence without first procuring the consent of his probation officer. Tobias v. State, 641 So. 2d 194 (Fla. 4th DCA 1994); accord Gauthier v. State, 949 So. 2d 326, 326-27 (Fla. 5th DCA 2007); Johnson v. State, 668 So. 2d 240, 241 (Fla. 1st DCA 1996). Therefore, the trial court erred in finding that Appellant violated his probation by changing h…
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Muldrow v. State, 698 So. 2d 389 (Fla. 4th DCA 1997)…The trial court did not abuse its discretion by finding that appellant violated condition 3 of his probation by changing his residence without the consent of his probation officer on August 29,1996. This ease is distinguishable from Tobias v. State, 641 So. 2d 194 (Fla. 4th DCA 1994), where the evidence was that the defendant had not changed his residence; although he had not returned home for several days, Tobias had left all his belongings at a house located in Jupiter and the owner expected that he would c…
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