MICHAEL DANA PALINSKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Palinski appealed the revocation of his community control under Anders v. California. The appellate court reversed the revocation after finding the State failed to prove a willful and substantial violation of the condition prohibiting unauthorized residence changes, though it acknowledged a violation of the condition requiring lawful conduct.
The court held that the State failed to prove a willful and substantial violation of condition three because the evidence showed Palinski's move was prompted by an emergency situation with the roommate and he promptly notified the Department following proper procedures. The court reversed and remanded, unable to determine whether the violation of condition eight alone would justify revocation.
[1] A revocation of community control must be supported by proof of a willful and substantial violation of a condition of supervision.
[2] Evidence of a defendant's prompt reporting of a change in residence to the Department of Probation and Parole may demonstrate that the violation was not willful.
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Join FLexlaw to unlock all legal intelligence“Because our independent review of the record reveals that the State failed to prove a willful and substantial violation of condition three, we reverse the revocation and remand for further proceedings.”
States the court's holding that the primary basis for revocation was unsupported by sufficient evidence.
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Join FLexlaw to unlock all legal intelligencePalinski was on community control and resided with his sister, her roommate, and their children. On March 15, 1998, tension between Palinski and the r…
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BLUE, Judge.
In his appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Michael Palinski challenges the revocation of his community control. Because our independent review of the record reveals that the State failed to prove a willful and substantial violation of condition three, we reverse the revocation and remand for further proceedings.
Following an evidentiary hearing, Palin-ski was found to have violated two conditions of his community control: changing his residence without prior consent of his community control officer (condition three) and living and remaining at liberty without violating the law (condition eight). There is no question that Palinski violated condition eight by driving himself to the probation office without having a valid driver’s license.
As to condition three, the State presented testimony that Palinski had moved his residence prior to receiving permission or consent from his community control officer.
However, the State failed to present evidence that the move was a willful violation of supervision. While on community control, Palinski resided with his sister, his sister’s female roommate, and children belonging to both his sister and the roommate. The relationship between Palinski and the roommate was always strained.
On March 15, 1998, the tension between the two exploded and the roommate insisted that Palinski leave the apartment. Palinski went to his then-girlfriend’s father’s . house and, from there, called the emergency number given to individuals on community control and reported the situation and his current whereabouts.
At the hearing, Palinski presented witnesses and a telephone bill to support his position that the alleged violation of condition three was not a willful violation. Indeed, the record shows that Pa-linski followed the procedure given to him by the Department of Probation and Parole. There is substantial evidence in the record that Palinski’s violation of this condition is excusable in light of the volatile situation with the roommate and Palinski’s prompt telephone call to the Department.
Because the greater weight of the evidence supports that Palinski did not willfully and substantially violate condition three and we are unable to determine whether the court would have revoked Pa-linski’s community control based on the violation of condition eight alone, we reverse and remand for further proceedings.
THREADGILL, A.C.J., and FULMER, J., Concur.