RAYMOND SANDERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raymond Sanders appeals the revocation of his probation for alleged violations of drug treatment participation, urinalysis submission, and monthly reporting requirements. The appellate court reverses, finding the evidence insufficient to prove willful and substantial violations as required by law.
The court reversed the probation revocation, holding that the evidence was insufficient to establish willful and substantial violations. Sanders did not exceed the permitted number of unexcused absences from the drug treatment program, was not asked to submit to urinalysis by his officer or treatment center staff, and the omission of a single monthly report does not constitute a substantial violation supporting revocation.
[1] A violation of probation must be willful and substantial, and its willful and substantial nature must be supported by the greater weight of the evidence to trigger revoca…
[2] A defendant does not violate a drug treatment program condition of probation by missing meetings if the number of unexcused absences does not exceed the program's stated…
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Join FLexlaw to unlock all legal intelligence“To trigger a revocation of probation, a violation must be willful and substantial and its willful and substantial nature must be supported by the greater weight of the evidence.”
Establishes the legal standard governing probation revocation that the trial court failed to meet
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Join FLexlaw to unlock all legal intelligenceSanders pleaded nolo contendere to burglary of a structure and possession of burglary tools, receiving five years' probation with conditions including…
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THREADGILL, Chief Judge.
The appellant, Raymond Sanders, challenges an order revoking his probation. Because the evidence presented at the revocation hearing was insufficient to prove willful and substantial violations of probation, we reverse.
The appellant pleaded nolo contendere to burglary of a structure and possession of burglary tools. The trial court sentenced him to five years’ probation with the special condition that he serve eleven months and twenty-nine days in county jail on each count to run consecutively. The trial court also required him to enter and complete a drug treatment program. Thereafter, the appellant’s probation officer filed an affidavit of violation of probation alleging the appellant violated, inter alia: condition (1) which required him to make a monthly report to his probation officer; condition (12) which required him to submit to urinalysis to determine possible use of drugs or controlled substances; and the special condition which required him to enter and complete a drug treatment program. After an evidentiary hearing, the trial court found willful violations of these three conditions and revoked probation, sentencing the appellant to consecutive terms of five years in prison on each count.
To trigger a revocation of probation, a violation must be willful and substantial and its willful and substantial nature must be supported by the greater weight of the evidence. Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988). The evidence presented in this case was insufficient to establish violations of the probation conditions involving drug treatment and urinalysis.
At the evidentiary hearing, the administrator of the Choices Non-secure Treatment Program testified that the appellant was terminated from the aftercare portion of the drug treatment program because he had missed three weekly meetings. The administrator testified that participants were not permitted to have more than three unexcused absences. Similarly, the appellant testified it was his understanding he could miss three meetings, no more. The appellant did not exceed the number of unexcused absences permitted by the program. Thus, it cannot be said the appellant violated his probation by failing to comply with the policies of the drug treatment program he was directed to complete.
The program administrator also testified that, as a result of his absences, the appellant missed two urinalyses that were to be conducted at the weekly meetings. The administrator testified that participants were not advised in advance as to when the urine samples would be collected. He testified that the appellant was not asked to submit the two urine samples because he was not present at the meetings. Probation condition (12) states: “[y]ou will submit to urinalysis, breathalyzer or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs or controlled substances.” Neither the appellant’s officer nor the treatment center staff asked the appellant to submit to urinalysis on the dates he was absent from the meetings. Therefore, it cannot be said the appellant violated his probation by failing to submit to such tests.
Finally, the appellant’s failure to submit a monthly report does not support revocation in this case. The appellant’s probation officer testified that the appellant failed to submit a monthly report for February 1995. The appellant admitted that he failed to file the report. The technical omission of failing to submit one monthly report, by itself, is not a substantial violation that would support revocation of probation. Glenn v. State, 558 So. 2d 513 (Fla. 2d DCA 1990). Because the evidence presented at the revocation hearing fails to demonstrate a willful and substantial violation of probation, we reverse the order of revocation of probation. We need not address the other points on appeal.
Reversed.
FRANK and LAZZARA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Carter, 835 So. 2d 259 (Fla. 2002)…Court of Appeal, relying on its earlier precedent, held that failure to file a single monthly report does not by itself constitute a substantial violation of probation. See Moore v. State, 632 So. 2d 199 (Fla. 1st DCA 1994); accord Sanders v. State, 675 So. 2d 665 (Fla. 2d DCA 1996). The First District acknowledged that its decision was in conflict with the decision by the Fourth District in Schwartz v. State, 719 So. 2d 965 (Fla. 4th DCA 1998). This petition for discretionary review followed. The State argu…1 / 2
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Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000)…by failing to file a monthly report and by failing to enroll in educational classes. Probation can be revoked only on the basis of a willful and substantial violation, which must be shown by the greater weight of the evidence. See Sanders v. State, 675 So. 2d 665 (Fla. 2d DCA 1996). This court has held that the technical omission of failing to submit one monthly report, by itself, does not support revocation because it is not a substantial violation. See Sanders. See also Glenn v. State, 558 So. 2d 513 (Fla.…
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Thomas v. State, 760 So. 2d 1138 (Fla. 5th DCA 2000)…oke the 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. See, e.g., Inman v. State, 684 So. 2d 899. (Fla. 2d DCA 1996); Sanders v. State, 675 So. 2d 665 (Fla. 2d DCA 1996); Green v. State, 620 So. 2d 1126 (Fla. 1st DCA 1993). The state has the burden of proving by the greater weight of the evidence that the probationer’s actions were willful and substantial. See, e.g., Garcia v. State, 701 So. 2d 60…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988)
- Glenn v. State, 558 So. 2d 513 (Fla. 2d DCA 1990)