DAVID LLUMBET, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1997-08-27
No. 96-1867
GLICKSTEIN, PARIENTE and GROSS, JJ., concur.
698 So. 2d 381 Florida District Court of Appeal, Fourth District (1997) Positive Treatment
Cited by 11 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

David Llumbet appeals the revocation of his community control in two cases resulting from alleged violations. The Fourth District Court of Appeal affirms in part and reverses in part, finding that while some violations were properly found, the restitution revocation was premature and the arrearage calculation was erroneous, requiring remand for reconsideration of whether revocation should be ordered based on the remaining valid violations.


Holding

The court affirmed the finding that Llumbet violated community control by failing to report on September 8 and failing to pay supervision costs, as he lived only three miles away and was employed with ability to pay. However, the court reversed the revocation based on failure to pay restitution as premature, since no payment schedule was established and Llumbet had remaining time during his community control and probation to pay. The court reversed and remanded for reconsideration of whether revocation should be ordered based solely on the two valid violations, and for correction of the arrearage calculation.


Headnotes

[1] A trial court does not abuse its discretion in finding a defendant in violation of community control for failing to report to a probation officer when the defendant lives…

[2] A defendant may be found in violation of community control for failing to pay costs of supervision when the defendant has the ability to pay and does not claim inability…

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Key Quotes

“[QUOTE REDACTED — failed verbatim audit (paraphrase, not verbatim). See original_text for the text as originally displayed.]”

Establishes the standard for when lack of transportation excuses failure to report and applies it to Llumbet's proximity to the community control office.

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Facts & Procedural History

Llumbet was convicted in April 1994 and sentenced to two years community control plus three years probation for burglary, possession of burglary tools…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

David Llumbet appeals the revocation of his community control in two separate cases and the resulting judgments and sentences. We affirm in part, reverse in part, and remand for reconsideration.

In April, 1994, Llumbet was convicted and sentenced to two years community control followed by three years probation for burglary of a structure, possession of burglary tools and grand theft. He was ordered to pay $52 per month for costs of supervision. In September, 1994, a probation officer filed an affidavit aleging ten violations of community control. Shortly thereafter, the state charged Llumbet in a second case with burglary of a structure, grand theft and possession of burglary tools. As a result, an amended affidavit of violation of community control was filed in the first case adding alegations of violation for the charges in the second ease, and for Llumbet’s failure to remain confined to his residence on the date of those crimes.

On December 1,1994, Llumbet was adjudicated guilty and sentenced in the second case as an habitual offender to two years community control followed by eight years probation. He was ordered to pay $50 per month for costs of supervision, or perform community service hours in leu of payment. The court set restitution at $235.20.

On the same day, Llumbet entered a plea to a violation of community control in the first case. The court revoked community control and reimposed the original sentence — two years community control followed by three years probation. The court ordered Llumbet to pay $50 per month for costs of supervision and approved community service hours in leu of payment. The court waived payment of costs of supervision while Llum-bet attended the ordered drug program.

On September 8, 1995, Llumbet’s community control officer went to Llumbet’s home at 7:50 a.m. and instructed him to report to his office at 10:30 a.m. to submit to a urine drug test. Llumbet failed to report and never showed up again.

Affidavits of violation of community control were filed in both cases alleging that Llum-bet was in violation for 1) failng to comply with the community control officer’s instruction to report on September 8; 2) failing to pay $52 per month for costs of supervision, and running up a $520 arrearage; 3) failing to remain confined to the approved residence on July 2 and September 7, 1995; and 4) failng to submit to a urinalysis test as requested by the community control officer on September 8. The affidavit of violation for the second case also alleged that Llumbet failed to make restitution of $235.20 at the rate of $50 per month and that he was in arrears for the full amount.

The court found Llumbet in violation for failng to comply with the instruction to report to the community control officer on September 8, failing to pay $255 for costs of supervision, declaring him to be $500 in arrears, and failng to pay $235.20 in restitution at the rate of $50 per month. Without elaborating, the court found Llumbet not guilty of the remaining alleged violations. After noting Llumbet’s six prior convictions for burglary or possession of burglary tools, two prior convictions for grand theft and his history of traffic offenses, the court sentenced him as an habitual offender in the second ease to seven years in prison followed by three years probation. For the violation in the first case, the court sentenced Llumbet to five years in prison, concurrent with the sentence for the second case. Llumbet argues that the trial court erred in finding that he 'willfully and substantially failed to follow his community control officer’s instructions to report on September 8, where it was raining, he had no transportation and he was given only three hours notice to report. Whether, under the circumstances, Llumbet’s violation should have been excused is a matter within the discretion of the trial court. Porras v. State, 651 So. 2d 183 (Fla. 3d DCA 1995); see Allen v. State, 666 So. 2d 259, 260 (Fla. 4th DCA 1996). Although lack of transportation may be an excuse where the distance to be travelled is substantial and the defendant otherwise attempted to comply, see Washington v. State, 667 So. 2d 255, 256 (Fla. 1st DCA 1995); Shaw v. State, 391 So. 2d 754, 755 (Fla. 5th DCA 1980), the trial court did not abuse its discretion in finding Llumbet in violation for failing to follow the September 8 directions of the officer to report since Llum-bet lived only three miles from the community control office and could have walked if necessary.

The trial court did not err in finding a violation for Llumbet’s failure to pay costs of supervision, where it was uncontroverted that Llumbet never made any payments toward those costs. We recognize that the order of community control improperly permitted community service hours in lieu of paying costs of supervision. See Royster v. State, 657 So. 2d 36 (Fla. 4th DCA 1995). In Royster we held that “[bjecause a defendant’s due process rights would be implicated if forced to pay court-imposed costs [by performing community service] if the defendant can show an inability to pay, it follows that a defendant may not be required to perform community service hours in lieu thereof if unable to make such payment...” Id. (citations omitted and emphasis supplied). However, Llumbet never claimed an inability to pay the costs of community control, nor did he perform one hour of community service. The evidence demonstrates that Llumbet was instructed and was aware of the required payment procedures and amount, and that he was employed and had the ability to pay. Unlike Royster v. State, 691 So. 2d 1196 (Fla. 4th DCA 1997), where community control was wrongfully revoked for the defendant’s failure to perform community service in lieu of paying costs of supervision, Llumbet was in violation for willfully refusing to pay the costs when he had the ability to do so, not for failing to perform community service.

Although there was no error in finding Llumbet in violation for failing to pay costs of supervision, we remand for correction of the arrearage amount. As the state concedes, contrary to the order of community control, the trial court’s calculations failed to waive the costs of supervision while Llumbet attended the drug program.

Revocation on the ground that Llumbet failed to pay restitution was premature. See Tracy v. State, 673 So. 2d 544 (Fla. 4th DCA 1996). The trial court did not set forth a restitution payment schedule, and it is improper for the court to delegate that task to the defendant’s community control officer. Id. Where the orders obligating Llumbet to pay restitution do not specify either a payment schedule or a time limit for payment, Llumbet had the entire term of his community control within which to pay. Id. Llumbet still had over a year of community control followed by eight years of probation during which he could have satisfied his restitution condition. We also note that the court mistakenly stated the arrearage amount to be $355.30, rather than $235.20.

As to Llumbet’s other claims, we find no merit.

Because we cannot determine from the record whether the trial court would have revoked Llumbet’s community control based on the two valid violations, we reverse the order of revocation and remand for reconsideration. Royster, 691 So. 2d at 1196; Mathis v. State, 683 So. 2d 634, 637 (Fla. 4th DCA 1996). On remand, if the trial court determines that revocation remains warranted, it must enter a written order of revocation. See, e.g., Watts v. State, 688 So. 2d 1018 (Fla. 4th DCA 1997).

GLICKSTEIN, PARIENTE and GROSS, JJ., concur.


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Citator

Cited By

  • Lopez v. State, 722 So. 2d 936 (Fla. 4th DCA 1998)
    …cer’s inquiries. See Roseboro v. State, 528 So. 2d 499, 500 (Fla. 2d DCA 1988). The evidence indicates that Appellant made a conscious decision to leave his residence and made no reasonable effort to comply with the condition. See Llumbet v. State, 698 So. 2d 381, 383 (Fla. 4th DCA 1997). Absence from the home without permission supports a finding of a willful and substantial violation of community control. Whether Appellant should be excused for leaving is a matter within the trial court’s sound discretion.…
  • Legree v. State, 739 So. 2d 616 (Fla. 1st DCA 1999)
    …revoked the defendant’s probation and imposed the same sentence based on the two valid violations, we reverse the revocation order for further proceedings in the trial court. See Mathis v. State, 683 So. 2d 634 (Fla. 4th DCA 1996); Llumbet v. State, 698 So. 2d 381 (Fla. 4th DCA 1997). Affirmed in part and reversed in part. BARFIELD, C.J., VAN NORTWICK and PADOVANO, JJ., CONCUR.…
  • Carlton Willis v. State, 727 So. 2d 952 (Fla. 4th DCA 1998)
    …had eighteen days to go. He correctly argues that, because there was no time schedule for payment of the costs or performance of the community service, he had until the end of his probationary term to comply with those conditions. Llumbet v. State, 698 So. 2d 381 (Fla. 4th DCA 1997)(where order requiring defendant to pay restitution does not specify a payment schedule or time limit, defendant has entire time of community control in which to pay). Because we are confident from this record that the trial cour…

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