TODD REMICH, A/K/A TODD REMICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Todd Remich appealed the revocation of his community control. The court affirmed the revocation based on his willful violation of the curfew condition (condition ten) but reversed the revocation on the failure-to-report condition (condition nine) due to excusable lack of transportation. The court remanded for entry of a proper written revocation order specifying the violated condition.
The court affirmed revocation based on Remich's willful violation of the curfew condition (condition ten) because he deliberately left his home without permission. However, the court reversed revocation based on the failure-to-report condition (condition nine) because Remich's violations were excusable due to lack of transportation. The court remanded for entry of a written order specifying the violation of condition ten, as required by law.
[1] A written order revoking probation must accurately reflect the specific violations proven and orally pronounced by the court.
[2] A probation revocation order must be corrected when it includes findings of violations for which no evidence was presented.
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Join FLexlaw to unlock all legal intelligence“While failure to report to the community control officer provides a basis for revocation of community control, there is substantial evidence in the record that Remich's violations of this condition are excusable because of a lack of transportation.”
Establishes that transportation obstacles can excuse failure-to-report violations and prevent revocation
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Join FLexlaw to unlock all legal intelligenceRemich pleaded guilty to burglary and grand theft and was placed on community control for one year concurrent with two years' probation. After six mon…
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QUINCE, Judge.
Appellant, Todd Remich, challenges an order revoking his community control.
We affirm the trial court’s revocation of Remich’s community control on one of the two grounds orally pronounced at the revocation hearing, but remand to the trial court for entry of a written order of revocation. Remich was charged with burglary and grand theft in violation of sections 810.02(3) and 812.014, Florida Statutes (1993), and entered into a negotiated plea agreement.
Pursuant to the negotiated plea, Remich was placed on community control for one year, and probation for two years, to run concurrently. After Remich had served six months’ community control, his community control officer filed an affidavit charging him with violating his community control by failing to return to and remain at home during designated hours and failing to appear at scheduled meetings with the community control officer. Condition nine of Remich’s community control provided that he was to report to his community control officer at least once a week or as otherwise directed by his community control officer. Condition ten provided that Remich be confined to his residence except for one-half hour before and after his approved employment, public service work, or any other special activities approved by the community control officer. At the revocation hearing, Remich admitted substantially all of the allegations in the violation affidavit, but denied that those acts constituted willful violations of the conditions of his community control.
We reverse the tnal court s determination as to condition nine. While failure to report to the community control officer provides a basis for revocation of community control, there is substantial evidence in the record that Remich’s violations of this condition are excusable because of a lack of transportation. Harris v. State, 610 So. 2d 36 (Fla. 2d DCA 1992) (unintentional failure to meet with community control officer was not misconduct); Haynes v. State, 571 So. 2d 1380 (Fla. 2d DCA 1990)(failure to make financial payments which was a condition of probation was not a ground to revoke probation if the defendant could not afford payments); Scott v. State, 485 So. 2d 40 (Fla. 2d DCA 1986)(defendant who made reasonable effort to comply with community control, violation was not willful).
Accordingly, revocation on this ground was inappropriate.
However, the trial court correctly found that Remich violated condition ten of the community control order. A violation which is both willful and substantial triggers a revocation of community control. Bourassa v. State, 684 So. 2d 869 (Fla. 2d DCA 1996). Remich admitted purposefully leaving his home, without permission from the community control officer, to attend to unauthorized, albeit legal, activities. The trial court properly revoked Remich’s probation for deliberately failing to remain at home during the time periods set forth in the community control order. Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992); Haynes, 571 So. 2d at 1381. We affirm the trial court’s ruling on this ground.
Although we affirm revocation of Re-mich’s community control, we must nevertheless remand for further proceedings. A revocation order must set forth the specific conditions violated. Maxlow v. State, 636 So. 2d 548 (Fla. 2d DCA 1994); Haynes, 571 So. 2d at 1381-82. The trial court failed to enter such an order in this case. Accordingly, we remand to the trial court for entry of a written order setting forth Remich’s violations of condition ten of the community control order. Affirmed in part; reversed and remanded in part.
THREADGILL, A.C.J., and NORTHCUTT, J., concur.
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Meade v. State, 799 So. 2d 430 (Fla. 1st DCA 2001)…5 (Fla. 5th DCA 2000); see also Butler v. State, 775 So. 2d 320, 321 (Fla. 2d DCA 2000) (failure to enroll in educational classes because of transportation problems does not constitute a willful and substantial probation violation); Remich v. State, 696 So. 2d 1270, 1271 (Fla. 2d DCA 1997) (no willful violation of condition of probation because failure to report to community control officer was excusable based on lack of transportation); Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992) (probationer’s unsucc…
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Watson v. State, 718 So. 2d 253 (Fla. 2d DCA 1998)…on several occasions in violation of the conditions of community control: If there is no order of revocation, upon remand the trial court shall enter an order specifying the conditions of community control that Watson violated. See Remich v. State, 696 So. 2d 1270, 1271 (Fla. 2d DCA 1997). Second, we note that the trial court erred by including the violation of community control as an additional offense in calculating the sentence on the new habitual offender sentence. Assuming that the trial court revoked W…
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Fields v. State, 737 So. 2d 1156 (Fla. 2d DCA 1999)…al court for resentencing within the guidelines. Finally, Fields argues, and the State concedes, that the trial court erred by failing to render an order setting forth the specific conditions, of probation that Fields violated. See Remich v. State, 696 So. 2d 1270, 1271 (Fla. 2d DCA 1997). Accordingly, upon remand, we direct the trial court to enter a proper order setting forth the specific conditions that Fields .violated. Affirmed in part; reversed and remanded for resentencing. THREADGILL and STRINGER, J…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992)
- Haynes v. State, 571 So. 2d 1380 (Fla. 2d DCA 1990)
- Scott v. State, 485 So. 2d 40 (Fla. 2d DCA 1986)
- Harris v. State, 610 So. 2d 36 (Fla. 2d DCA 1992)
- Combest v. State, 636 So. 2d 548 (Fla. 4th DCA 1994)
- Maxlow v. State, 636 So. 2d 548 (Fla. 2d DCA 1994)
- Bourassa v. State, 684 So. 2d 869 (Fla. 2d DCA 1996)