ARMANDO MCCUMBER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed McCumber's probation revocation, holding that an unexpected telephone call from his estranged wife and daughter on Father's Day did not constitute a willful and substantial violation of his probation conditions prohibiting contact with his daughter. The court found that McCumber neither initiated the contact nor knowingly associated with his daughter, and therefore had not violated his probation.
The court held that the evidence did not support a finding that McCumber initiated contact or associated with his daughter, and therefore the probation revocation was not based on willful and substantial violation. Receiving an unexpected telephone call without prior knowledge of the caller's identity does not constitute initiation of contact or impermissible association.
[1] A violation of probation must be willful and substantial to trigger revocation.
[2] The greater weight of the evidence must show that a probation violation is substantial.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A violation which triggers a revocation of probation must be willful and substantial.”
Establishes the legal standard for probation revocation that the court applied in reviewing the lower court's decision
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Join FLexlaw to unlock all legal intelligenceMcCumber was sentenced to three years' imprisonment followed by ten years' probation for engaging a child in sexual activity. Two probation conditions…
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RYDER, Acting Chief Judge.
We reverse the order of revocation of probation because the evidence does not evince a substantial and willful violation.
Following a plea of no contest and adjudication of guilt for one count of engaging a child in sexual activity in violation of section 794.041, Florida Statutes (1991), Armando McCumber was sentenced to three years’ imprisonment followed by ten years’ probation. The two probation conditions at issue are:
(19) You will have no contact with any female child under the age of eighteen without an approved adult present. Said contact must be previously approved by your Probation Officer. (20) During the period of this probation, you are not to initiate or have association with victim (daughter).
In July 1994, Mr. McCumber’s probation officer filed an affidavit of violation of probation condition (20), alleging that the probationer admitted to him that he had initiated contact with the victim by speaking to her on the telephone. At the probation revocation hearing, the appellant’s daughter testified that it was her mother’s idea to place a multi-line telephone call to the appellant on Father’s Day and that the appellant knew nothing about the surprise. The appellant testified that he received a telephone call from his estranged wife, but that he did not know that his daughter was on the third line until she spoke. He did not have a telephone, and in order to contact him, his wife first called his neighbor who relayed the message to him to wait for a later call. After speaking with his daughter, he terminated the telephone call even though he did not initiate it. He did not know where his daughter lived and he never made any effort to contact her in any way.
The appellant’s probation officer testified that other than this one telephone conversation, he did not believe that the appellant had had any contact with his daughter. The appellant voluntarily told him that he had received a call from his wife and daughter. His testimony does not support the allegation that the appellant initiated the contact.
The judge found that the appellant did not initiate the conversation, but that his continued conversation with his daughter violated his probation in that he had association or contact with her. In effect, this finding shows a violation of a hybrid of conditions (19) and (20).
A violation which triggers a revocation of probation must be willful and substan tial. Harris v. State, 610 So. 2d 36, 37 (Fla. 2d DCA 1992). The greater weight of the evidence must show that the violation is substantial. Davidson v. State, 419 So. 2d 728 (Fla. 2d DCA 1982). The standard of review on a probation revocation is whether the trial court abused its discretion. Molina v. State, 520 So. 2d 320 (Fla. 2d DCA 1988).
No testimony supports the conclusion that the appellant initiated the telephone call. The court specifically found that the appellant had not initiated the contact as alleged in the affidavit. No evidence supports the conclusion that the appellant knew that his daughter was on the telephone until she spoke to him. Although they spoke briefly about school and her brother, the appellant terminated the conversation with her. The evidence does not support the conclusion that the appellant initiated or associated with his daughter in violation of condition (20). To associate with another contemplates a companionship or relationship with another. The appellant’s action in receiving a telephone call without knowledge of his daughter’s presence on the line does not equate with his association with her. Even had the probation officer alleged a violation of condition (19) that he had contact with a female child without an approved adult present, the appellant could not have obtained the previous approval of his officer when he had no knowledge that his daughter would call.
We conclude that the instant violation was neither willful nor substantial, and that the trial judge abused his discretion in revoking probation. Accordingly, we reverse the order of revocation of probation and sentence and direct the trial court to continue the previously imposed probation.
Reversed and remanded.
DANAHY and LAZZARA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)…roved by the greater weight of the evidence that the probationer willfully and substantially violated probation. Del Valle v. State, 80 So. 3d 999, 1012 (Fla.2011) (citing State v. Garter, 835 So. 2d 259, 261 (Fla.2002)); see also McCumber v. State, 682 So. 2d 1214, 1215-16 (Fla. 2d DCA 1996) (citing Davidson v. State, 419 So. 2d 728 (Fla. 2d DCA 1982)); Hanania v. State, 855 So. 2d 92, 94 (Fla. 2d DCA 2003) (using term “preponderance” of the evidence) (citing Stevens v. State, 823 So. 2d 319, 321 (Fla. 2d DCA…
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Inman v. State, 684 So. 2d 899 (Fla. 2d DCA 1996)…re at the home. The officer left before Mr. Inman’s ex-wife came to pick up the boys. A violation which triggers a revocation of probation must be willful and substantial and must be proven by the greater weight of the evidence. McCumber v. State, 682 So. 2d 1214 (Fla. 2d DCA 1996). In this case, there is no evidence that Mr. Inman initiated the contact, and the undisputed evidence establishes that he attempted to avoid the unauthorized visit. Nothing refutes the testimony of both his ex-wife and his fiance…
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Fields v. State, 737 So. 2d 1156 (Fla. 2d DCA 1999)…probation was not willful or substantial; however, we disagree. In order to support revocation of probation based on a violation of a condition of probation, the State must prove that the violation was substantial and willful. See McCumber v. State, 682 So. 2d 1214, 1216 (Fla. 2d DCA 1996). Furthermore, when the trial court revokes probation based on the defendant’s failure to complete a program, this court has required that the State prove that the defendant’s failure to complete the program was the defendant…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Piper v. State, 520 So. 2d 320 (Fla. 2d DCA 1988)
- Molina v. State, 520 So. 2d 320 (Fla. 2d DCA 1988)
- Harris v. State, 610 So. 2d 36 (Fla. 2d DCA 1992)
- Davidson v. State, 419 So. 2d 728 (Fla. 2d DCA 1982)