RENE O. ZELAYA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Zelaya's community control was revoked based on a violation for being in a sporting goods store when he was required to be home or at work. The court reversed, finding that the violation was neither willful nor substantial because Zelaya had no control over the driver's decision to stop at the store and merely chose to remain with his work crew rather than sit alone in an open truck.
The court reversed the revocation, concluding that appellant's presence in the store was neither a willful nor substantial violation of his community control conditions. The court found that when the driver decided to enter the store, appellant faced a practical choice between staying with his crew or remaining alone in an open truck, and choosing to stay with the crew was not a willful violation.
[1] A violation of community control or probation must be willful and substantial to warrant revocation.
[2] A defendant's presence in a store with their work crew, when the crew unexpectedly stops, may not constitute a willful or substantial violation of a home confinement cond…
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Join FLexlaw to unlock all legal intelligence“it is proper to revoke probation only upon a showing of a deliberate, willful, and substantial violation of the conditions thereof”
Establishes the legal standard for probation revocation that the court applied to analyze whether the violation met the required threshold.
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Join FLexlaw to unlock all legal intelligenceAppellant was employed as a landscaper and subject to community control requiring him to be home by 6:00 p.m. (with a 30-minute travel allowance) unle…
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KLEIN, Judge.
Appellant’s community control was revoked, and he appeals, arguing that the violation was not willful or substantial. We agree and reverse.
Appellant was employed by a landscaper and his community control required him to be at home if he was not at work. He was supposed to be home by 6:00 p.m., but his community control officer would give him a half hour travel time.
At approximately 6:30 p.m. appellant’s community control officer saw appellant in a sporting goods store carrying a box of sneakers and walking towards the cashier. According to the officer the appellant approached the officer and explained that he was returning from a landscape job with his work crew, when they had all gone into the store.
Appellant testified that he was riding in the back of a truck with the landscape crew which left the job site around 6:10 p.m. The driver decided to -stop at the store because there was a sale, and the crew all went in. It was raining, and the back of the truck, in which appellant was riding, was open. While appellant was in the store, he decided to buy new sneakers. After they left the store they returned to the employer’s office, where appellant punched out. He then went home on the bus. He admitted that he knew he was violating his community control but explained that he had no control over the actions of the driver of the truck who stopped to go into the store.
Although appellant admitted that he knew going in the store violated his community control, he argues that the trial court abused its discretion, citing Davis v. State, 704 So. 2d 681 (Fla. 1st DCA 1997) (it is proper to revoke probation only upon a showing of a deliberate, willful, and substantial violation of the conditions thereof).
The obvious intent of the conditions imposed on appellant was that he either be at work or at .home. When the driver, over whom he had no control, decided to go into the store, appellant was left with the choice of staying with his crew and going 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 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 apartment) and Sanders v. State, 675 So. 2d 665 (Fla. 2d DCA 1996)(fail-ing to submit one monthly report was not a substantial violation which supported revocation of probation).
Reversed.
DELL, J., concurs.
GUNTHER, J., dissents without opinion.
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Montgomery v. State, 825 So. 2d 1075 (Fla. 4th DCA 2002)…stioned him about the schedule showing the address of his new employer. She also acknowledged that whether he had permission to work for the new employer was “confusing.” These facts do not show a willful or substantial violation. Zelaya v. State, 713 So. 2d 1079 (Fla. 4th DCA 1998). Reversed. FARMER and SHAHOOD, JJ., concur.…
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Jones v. State, 149 So. 3d 172 (Fla. 4th DCA 2014)…the store, but rather, was made to go there by his mother, the trial court found that Defendant willfully and substantially violated the terms of his community control. The facts of this case are very similar to those presented in Zelaya v. State, 713 So. 2d 1079 (Fla. 4th DCA 1998). In Zelaya, the defendant was on community control and worked as a landscaper; his community control required him to be at work if he was not at home. Id. A half hour after his curfew, the defendant’s community control officer sp…
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Terrill A. Murray v. State, 253 So. 3d 1216 (Fla. 5th DCA 2018)…ttack upon the conviction. Guzman-Aviles v. State , 226 So. 3d 339, 342 (Fla. 5th DCA 2017) (quoting MacKinnon v. State , 39 So. 3d 537, 538 (Fla. 5th DCA 2010) ). Murray asserted in his motion that his case is factually similar to Zelaya v. State , 713 So. 2d 1079 (Fla. 4th DCA 1998). In that case, the defendant was placed on community control, and one of his conditions of supervision required that he be at home after work no later than 6:30 p.m. Id. at 1079. The defendant was working as a landscaper and, at…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flint v. State, 704 So. 2d 681 (Fla. 2d DCA 1997)
- Sanders v. State, 675 So. 2d 665 (Fla. 2d DCA 1996)
- Chamness v. State, 697 So. 2d 961 (Fla. 2d DCA 1997)