JOHN CHAMNESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Chamness appeals the revocation of his probation. The court affirmed the revocation based on his failure to complete outpatient sex offender treatment sessions but reversed the finding of a violation regarding his use of a former address, remanding for correction of the revocation order.
The court held that the trial court properly revoked probation based on Chamness' failure to attend three outpatient treatment sessions, but the revocation order must be corrected by striking the violation of condition one because the record does not demonstrate a willful and substantial violation of that condition.
[1] A probation revocation based on failure to attend required treatment sessions is proper.
[2] A probation violation must be willful and substantial to warrant revocation.
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Join FLexlaw to unlock all legal intelligence“the trial court properly revoked Chamness' probation based on his failure to attend three outpatient treatment sessions; however, we remand with directions to strike the violation of condition one because the record does not demonstrate a willful and substantial violation of this condition”
States the core holding regarding what violations justified revocation and what must be corrected
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Join FLexlaw to unlock all legal intelligenceChamness was on probation with conditions including truthful responses to his probation officer, notification of address changes, and completion of an…
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PER CURIAM.
John Chamness appeals an order revoking his probation. Chamness claims the trial court erred in revoking his probation based on alleged violations of probation condition one and a special condition which required that he complete an outpatient sex offender program. We find that the trial court properly revoked Chamness’ probation based on his failure to attend three outpatient treatment sessions; however, we remand with directions to strike the violation of condition one because the record does not demonstrate a willful and substantial violation of this condition.
Chamness’ probation officer filed a violation of probation (VOP) affidavit alleging violations of condition one, requiring his truthful response to all questions from his probation officer and the court; condition three, prohibiting any change in his address without his probation officer’s consent; and the special condition requiring outpatient treatment. The VOP affidavit incorrectly referred to the special condition of sex offender treatment as special condition twenty-two rather than special condition twenty-three.
At his VOP hearing Chamness explained that although he had moved his new address was less than 150 feet away from his former residence. He further explained that he kept his former residence as a mailing address because he was warned against receiving mail at his new apartment based on a history of mail tampering in the building. According to his testimony, he used the old address because it was very close to his new residence and because he wished to avoid problems receiving his mail.
Apparently convinced by Chamness’ explanation concerning the proximity of the two addresses, the trial court found that he had not violated probation condition three, i.e., he had not changed his address without the consent of his probation officer. Nevertheless, the court found Chamness guilty of violating condition one by using his former address on a monthly report. Based on our review of the record, and in light of the trial court’s findings as to condition three, we conclude that appellant’s use of his former residence on a monthly probation report did not constitute a willful and substantial violation of condition one. Accordingly, we remand to the trial court to strike the violation of this condition from the revocation order. Additionally, the new revocation order should refer to completion of the outpatient sexual offender treatment program as special condition twenty-three rather than special condition twenty-two.
BLUE, A.C.J., and QUINCE and WHATLEY, JJ., concur.
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Mitchell v. State, 871 So. 2d 1040 (Fla. 2d DCA 2004)…reports, constituted “a substantial violation of probation and [were] sufficient to support the revocation.” Id. Accordingly, remand for reconsideration was not required, and the violation of probation was affirmed. Id.; see also Chamness v. State, 697 So. 2d 961 (Fla. 2d DCA 1997) (remanding for the trial court to strike erroneous violation, otherwise affirming the revocation, where remaining violation was failure to comply with special condition outpatient sex offender program). In Davis v. State, 862 So.…
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Zelaya v. State, 713 So. 2d 1079 (Fla. 4th DCA 1998)…ng into the store, or remaining alone in the truck. We conclude that his choosing to stay with his crew was neither a willful nor substantial violation, and his purchase of shoes while in [*1080] the store was not substantial. See Chamness v. State, 697 So. 2d 961 (Fla. 2d DCA 1997)(probationer’s use of former address on monthly probation report, after he moved to a new residence 150 feet away, was not a willful and substantial violation, where he had been warned that the mail was tampered with at his new apa…
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Wilson v. State, 698 So. 2d 1377 (Fla. 3d DCA 1997)…PER CURIAM. We affirm the order revoking Wilson’s probation as the evidence is sufficient to prove a willful and substantial violation for failure to complete the sex offender program. See Chamness v. State, 697 So. 2d 961 (Fla. 2d DCA 1997). However, we vacate the sentence and remand for resentencing. As the state properly concedes, the court erred in assessing 40 points for penetration on the sentencing guidelines seoresheet. The state stipulated that the evidence s…
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