SHAWN D. FAULKNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Shawn Faulkner was convicted of violating community control after being mistakenly released from county jail before his sentence commenced. The appellate court reversed, holding that his failure to report before community control actually began did not constitute a willful and substantial violation.
Faulkner's failure to report before community control began did not constitute a willful or substantial violation. The State did not carry its burden of proving a willful and substantial violation because the mistaken release was not attributable to Faulkner and community control had not yet commenced.
[1] A violation of community control is not willful and substantial when the defendant's failure to report stems from a mistaken release from custody not attributable to the…
[2] A defendant's obligation to report for community control or probation generally contemplates that the defendant has commenced serving the sentence or has been released fr…
Previewing 2 of 4 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“The state did not carry its burden of showing that the appellant's violation was willful and substantial. Although the appellant did not report as instructed, his release from custody was not as a result of serving his sentence, but rather because of the mistake of the county jail.”
Establishes the legal standard that the State must prove a willful and substantial violation, and that an erroneous release due to jail error does not satisfy this burden.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFaulkner entered a plea agreement resulting in a suspended five-year prison sentence, one year in county jail with credit for time served, two years o…
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WHATLEY, Judge.
Shawn D. Faulkner appeals his conviction for violation of community control. He argues that his violation was not willful and substantial. We agree and reverse.
Faulkner originally entered into a plea agreement with the State and was sentenced to five years in prison, suspended, one-year in county jail with credit for time served, followed by two years of community control, followed by a term of probation. Two days after his incarceration in the county jail, he was mistakenly released. This release was an error not attributable to Faulkner. He remained law-abiding, but failed to contact the appropriate agency regarding the status of his community control or probation.
Forty-eight days after his release, a bench warrant was issued, and he was arrested for violation of community control. At the violation of community control hearing, he was found guilty and sentenced to prison for the balance of his five-year suspended sentence.
Faulkner contends Johnson v. State, 561 So. 2d 1254 (Fla. 2d DCA 1990), controls the above facts, and the State concurs and concedes error. The facts in Johnson are markedly similar to those in this ease. The Johnson court stated:
The state did not carry its burden of showing that the appellant’s violation was willful and substantial. Although the appellant did not report as instructed, his release from custody was not as a result of serving his sentence, but rather because of the mistake of the county jail. A probationer is required to initially report to his probation officer so that, among other things, he can be oriented on the requirements of his probation. The requirement generally contemplates that he has already commenced his probation. The fact that he was mistakenly released from custody before serving a prison sentence did not terminate that sentence and commence his probation. See Carson v. State, 489 So. 2d 1236 (Fla. 2d DCA 1986) (unless interrupted by fault of prisoner, sentence continues to run while he is at liberty). The appellant’s probation will not commence until he serves his prison sentence. ... His failure to report four years before he is scheduled to start his probation does not constitute a willful or substantial violation of his probation in this ease.
Johnson, 561 So. 2d at 1255-56.
Likewise, Faulkner’s failure to report before his community control began did not constitute a willful or substantial violation of his community control.1
Accordingly, we reverse the conviction for violation of community control and remand this matter for reinstatement of the original sentence.
Reversed and remanded.
PARKER, C.J., and BLUE, J., concur. . It appears from this record that Faulkner’s original county jail sentence would have been served or expired by the date of this opinion. If that it is the case, on remand, he wotild servé the balance of his community control and probationary term.
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Citator
Cited By
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Kerklin v. Godwin, 747 So. 2d 956 (Fla. 2d DCA 1999)…filed a petition for habeas corpus with the Florida Supreme Court. See id. The supreme court concluded that, without the defendant’s consent, the State could not stay the running of a jail sentence that had begun. See id. See also Faulkner v. State, 706 So. 2d 948, 949 n. 1 (Fla. 2d DCA 1998) (noting that if a defendant’s county jail sentence had expired after he was mistakenly released from jail, the court should not order him to be returned to the county jail, but should direct him to serve the remaining po…
Authorities Cited
- Carson v. State, 489 So. 2d 1236 (Fla. 2d DCA 1986)
- Johnson v. State, 561 So. 2d 1254 (Fla. 2d DCA 1990)