RODERICK BURSE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roderick Burse appealed the trial court's revocation of his probation for aggravated assault. The court affirmed the findings of violations for marijuana use and contact with the victim, but remanded to strike the improper findings regarding condition (9), though the revocation itself was affirmed because sufficient violations remained.
The court affirmed the violations of condition (7) (drug use) and the no-contact order as supported by sufficient evidence. However, the court found no willful violation of condition (9) because Burse made good faith efforts to provide the lease and reasonably interpreted the condition to apply only to his designated officer. The revocation was affirmed because sufficient violations remained.
[1] A probationer violates a condition prohibiting the use of intoxicants or possession of drugs by admitting to smoking marijuana.
[2] A probationer violates a condition prohibiting contact with a victim by admitting to having dinner with the victim on multiple occasions.
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Join FLexlaw to unlock all legal intelligence“A violation of probation must be willful and substantial in order to require a revocation of probation.”
Establishes the legal standard for probation violations requiring revocation
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Join FLexlaw to unlock all legal intelligenceOn January 4, 1996, Burse pleaded nolo contendere to aggravated assault on a pregnant woman and received four months' imprisonment followed by three y…
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PER CURIAM.
Roderick Burse appeals the trial court’s order revoking his probation. We affirm that portion of the trial court’s order finding violations of condition (7) and the court’s order prohibiting contact with the victim. However, we remand to the trial court to strike that portion of the order finding violations of condition (9).
On January 4, 1996, Burse pleaded nolo contendere to the charge of aggravated assault on a pregnant woman, and the court sentenced him to four months’ imprisonment, to be followed by three years of probation. Burse’s plea and probation were subject to the following conditions:
(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.
(9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.
Additionally, the court issued an order prohibiting Burse from having contact with the victim. On March 27, 1997, the trial court held a hearing on violation of probation charges and found Burse to be in violation of probation conditions (7) and (9) and the court’s order prohibiting contact with the victim.
We conclude that there was sufficient evidence for the trial court to find that Burse violated condition (7) of his probation by admitting to his probation officer, Officer Spurlock, that he smoked marijuana. Additionally, Officer Spurlock testified that he saw Burse with the victim on two occasions and that Burse admitted to having dinner with the victim on three occasions. This testimony constituted sufficient evidence to establish that Burse had contact with the victim. Therefore, the violations of condition (7) and the court’s order prohibiting contact with the victim are affirmed.
However, we conclude that Burse did not violate the provisions in probation condition (9) for failing to provide Officer Spurlock with a copy of Burse’s lease and for failing to allow Officer Willis to visit his residence. A violation of probation must be willful and substantial in order to require a revocation of probation. See Wagland v. State, 705 So. 2d 1016, 1017 (Fla. 2d DCA 1998). Where a probationer makes a good faith attempt to comply with a condition of probation, any violation is not willful. See Richter v. State, 697 So. 2d 939, 939 (Fla. 2d DCA 1997). Burse stated that he attempted to provide Officer Spurlock a copy of his lease, but Burse’s landlord was on vacation. Burse did provide his landlord’s telephone number and the date the landlord was to return. Although Burse failed to produce the lease upon the landlord’s return from vacation, there appears to have been a good faith effort to comply with the request.
Further, where there is confusion over a duty established by a condition of probation, any violation is not willful. See Murvin v. State, 541 So. 2d 1344, 1345 (Fla. 2d DCA 1989). Burse did not allow Officer Willis to enter his residence because Burse interpreted condition (9)’s statement that “[y]ou will ... allow your officer to visit in your home” to mean only his designated probation officer, Officer Spurlock. Accordingly, there is not sufficient evidence that Burse twice violated probation condition (9).
A revocation of probation stands even where findings for revocation are stricken where any violation sufficient for revocation remains. See Scott v. State, 446 So. 2d 1105, 1105 (Fla. 2d DCA 1984). Accordingly, we affirm the revocation of probation and remand this case to the trial court to strike the improper findings of violations of condition (9).
Affirmed and remanded with directions to the trial court.
PARKER, C.J., and CAMPBELL and QUINCE, JJ., Concur.
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LEE v. State, 67 So. 3d 1199 (Fla. 2d DCA 2011)…ven without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order. See, e.g., Simmons v. State, 913 So. 2d 19, 24 (Fla. 2d DCA 2005); Burse v. State, 724 So. 2d 596, 598 (Fla. 2d DCA 1998); Olvey v. State, 707 So. 2d 1189, 1189-90 (Fla. 2d DCA 1998); Bourne v. State, 869 So. 2d 606, 607 (Fla. 1st DCA 2004). Only when this court cannot determine from the record whether the trial court would have revoked the defe…
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Freddy Armando Arias v. State, 751 So. 2d 184 (Fla. 3d DCA 2000)…Arias’ probation based upon his indirect contact with the victim through a third party. Certainly, a probationer’s willful contact with a victim after being prohibited by court order is a valid ground for revocation of probation. See Burse v. State, 724 So. 2d 596 (Fla. 2d DCA 1998); Pace v. State, 691 So. 2d 599 (Fla. 4th DCA 1997). The order of probation mandated that Arias have no association in any way with the victim. By his very own admission to his defense counsel at the revocation hearing, Arias ackno…
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Bourne v. State, 869 So. 2d 606 (Fla. 1st DCA 2004)…d this case is remanded to the trial court with directions to strike the findings of violation for careless driving, resisting arrest with and without violence, and leaving the scene of an accident involving property damage only. See Burse v. State, 724 So. 2d 596, 598 (Fla. 2d DCA 1998) (affirming a revocation of probation and remanding for the trial court to strike the improper findings of violation). AFFIRMED and REMANDED with directions. WOLF, C.J.; PADOVANO and POLSTON, JJ., concur. . The State argues…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scott v. State, 446 So. 2d 1105 (Fla. 2d DCA 1984)
- Murvin v. State, 541 So. 2d 1344 (Fla. 2d DCA 1989)
- Richter v. State, 697 So. 2d 939 (Fla. 2d DCA 1997)
- Wagland v. State, 705 So. 2d 1016 (Fla. 2d DCA 1998)