JANET HERN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Janet Hern's community control was revoked by the trial court for violating her curfew by arriving home 35 minutes late. The appellate court reversed, finding the violation was neither willful nor substantial because Hern made reasonable efforts to comply with her conditions.
The court reversed and remanded with instructions to reinstate Hern's community control, holding that the violation was not willful and substantial because the record demonstrates that Hern made reasonable efforts to comply with the conditions of her community control.
[1] Community control or probation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of community control or…
[2] A trial court's decision to revoke a defendant's probation or community control is reviewed on appeal for an abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“Community control or probation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of community control or probation.”
Establishes the legal standard requiring willfulness for revocation of community control.
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Join FLexlaw to unlock all legal intelligenceHern signed into an approved alcohol and drug abuse treatment program at 6:15 p.m. on May 17, 1999, with a scheduled 8:30 p.m. curfew. When the group …
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PER CURIAM.
The trial court found that Janet Hern violated her community control by failing to remain confined to her approved residence.
As the state concedes, the violation in this case was not willful and substantial. Therefore, we reverse and remand with instructions to reinstate appellant’s community control.
The record shows that on May 17, 1999, appellant signed into her session at Bro-ward County Alcohol and Drug Abuse Services at 6:15 p.m. Hern had successfully completed phases 1 and 2 of the program. She had attended two sessions of phase 3.
The group let out at 8:15 p.m., leaving Hern only fifteen minutes to get home before her 8:30 p.m. curfew. A friend dropped Hern off at the meeting and she planned to take the bus home. When Hern realized that she had missed the bus, she decided to walk home rather than wait 45-55 minutes for the next bus.
Hern suffered from two disabilities which limited her mobility. She had fractured her foot several weeks earlier. She also suffers from myasthenia gravis, a neuromuscular disorder. After stopping twice to rest during her 45-minute walk, she arrived home at approximately 9:05 p.m.
Upon learning from her boyfriend that her community control officer had been by to check on her, Hern attempted to call him to explain her tardiness. However, he did not answer his phone. The next day at her scheduled appointment, Hern explained the events of the previous night to her community control officer. This incident was the first time the officer had ever had a problem with Hern.
Community control or probation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of community control or probation. See Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992). While a trial court’s decision to revoke a defendant’s probation or community control is reviewed on appeal for an abuse of discretion, the willful and substantial nature of the violation must be supported by the greater weight of the evidence. See Glee v. State, 731 So. 2d 759, 760 (Fla. 4th DCA 1999); Steiner, 604 So. 2d at 1267.
In this case, the record demonstrates that Hern made reasonable efforts to comply with the conditions of her community control, such that she did not willfully or substantially violate it.
No motions for rehearing will be entertained by this court.
WARNER, C.J., SHAHOOD and GROSS, JJ., concur.
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Citator
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Santiago v. State, 889 So. 2d 200 (Fla. 4th DCA 2004)…and substantial violation of a condition thereof, must be shown by the State by a preponderance or the greater weight of the evidence.” 15 Fla. Jur.2d Criminal Law § 2197. See State v. Jenkins, 762 So. 2d 535, 536 (Fla. 4th DCA 2000); Hern v. State, 747 So. 2d 1039, 1040 (Fla. 4th DCA 1999). “While hearsay evidence is admissible in probation revocation proceedings, hearsay alone is insufficient to establish a violation of a condition of probation.” Kiess v. State, 642 So. 2d 1141, 1142 (Fla. 4th DCA 1994). See…
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Rousey v. State, 226 So. 3d 1015 (Fla. 2d DCA 2017)…ght v. State, 847 So. 2d 1141, 1142 (Fla. 3d DCA 2003) (reversing a revocation order based on the defendant’s five-and-a-half-hour delay returning home from church when it was caused by his attendance at additional church activities); Hern v. State, 747 So. 2d 1039, 1039-40 (Fla. 4th DCA 1999) (concluding that the defendant did not willfully or substantially violate her curfew when she was thirty-five minutes late because she missed the bus and had to walk). Accordingly, we reverse the order of revocation and…
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Stanley v. State, 922 So. 2d 411 (Fla. 5th DCA 2006)…to return to her for treatment. Our standard of review for a violation of probation determination is abuse of discretion. See Bernhardt v. State, 288 So. 2d 490, 501 (Fla.1974); Arias v. State, 751 So. 2d 184, 186 (Fla. 3d DCA 2000); Hern v. State, 747 So. 2d 1039, 1040 (Fla. 4th DCA 1999). A violation of probation must be both willful and substantial before a defendant’s probation may be revoked. See State v. Carter, 835 So. 2d 259 (Fla.2002); Lawson v. State, 845 So. 2d 349, 350 (Fla. 2d DCA 2003); King v.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Steiner v. State, 604 So. 2d 1265 (Fla. 4th DCA 1992)
- Ulysses Glee v. State, 731 So. 2d 759 (Fla. 4th DCA 1999)