CHARLES OWEN LANE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Charles Owen Lane appeals his probation revocation and sentence enhancement as a habitual offender. The court affirmed the finding that Lane willfully violated his probation by failing to report, but remanded to correct the sentencing order to award proper credit for time previously served.
The trial court did not abuse its discretion in finding a willful and substantial violation of probation based on four consecutive months of failure to report. However, the sentencing order was erroneous for failing to award Lane credit for time served on the split sentence as pronounced orally at sentencing.
[1] A trial court does not abuse its discretion in finding a probation violation willful and substantial when the defendant fails to report for multiple consecutive months an…
[2] A defendant's claim of homelessness and lack of transportation does not excuse a willful and substantial violation of probation when the defendant could have otherwise re…
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Join FLexlaw to unlock all legal intelligence“Under the circumstances of this case, we find that the trial court did not abuse its discretion in finding that Lane's violation of his probation was willful and substantial.”
Establishes the applicable standard of review and affirms the core finding on probation violation.
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Join FLexlaw to unlock all legal intelligenceLane was convicted in 1993 of burglary with assault, grand theft, robbery, and battery, receiving a five-year prison sentence followed by two years pr…
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PER CURIAM.
Appellant Charles Owen Lane appeals his revocation of probation and sentence. In 1993, Lane was charged and convicted of burglary with an assault, grand theft, robbery, and battery for which he was sentenced to five years in prison on all charges. The sentence was to be followed by two years probation. After his release from prison, Lane remained at liberty for thirteen months, failing to report as required for six of those months.
The trial court sentenced Lane to seventeen years in prison as a habitual offender. Although this may be a harsh result, we conclude that the trial court committed no reversible error. Lane commenced his probation in 1996, and reported to his probation officer for the first three months, but by the fourth month, he failed to report. He was notified of his violation by mail, and his probation officer visited him at his home. For the next two months, Lane reported, but by January, 1997, he again failed to report. Lane reported for the last time on February 17, 1997, and was arrested on a separate charge of armed robbery on June 13, 1997.
At the revocation of probation hearing, the state proceeded only on the failure to report. Lane testified that his mother left him homeless during his probationary period and, as a result, he had no transportation and did not know how to get to the probation office by himself.
Under the circumstances of this case, we find that the trial court did not abuse its discretion in finding that Lane’s violation of his probation was willful and substantial. See Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992)(appellate court reviews trial court’s probation revocation decision for an abuse of discretion). Lane violated his probationary conditions by failing to report for four consecutive months (March through June, 1997). His failure to report commenced during the three months in which he resided with his mother and had no transportation problem.
Furthermore, the judge found that while Lane remained at liberty, he made no effort to contact his probation officer by mail, telephone, or otherwise. Even while he was homeless, Lane was a short distance from the probation office and could have traveled there at minimal cost or by walking. In fact, he managed to travel quite a distance away from his mother’s residence on the day of his arrest. See Hernandez v. State, 723 So. 2d 886, 887 (Fla. 4th DCA 1998) (stating that the state met its burden of proof-the greater weight of the evidence-in finding that the defendant’s failure to report to his probation was a willful and substantial violation of probation).
The trial court’s sentencing order, however, was erroneous in that it failed to award Lane credit for time served on the split sentence pursuant to the judge’s order at the sentencing hearing. See Amador v. State, 713 So. 2d 1121, 1122 (Fla. 3d DCA 1998)(holding that the trial court is required to enter sentencing order for probation violation that reflects the trial court’s oral pronouncement that gives the defendant prison credit for time served on a split sentence prior to sentencing).
We thus affirm the violation of probation, however, we remand the case to the trial court with directions to correct the sentencing order to reflect the fact that Lane should be credited for the time he had previously served in prison.
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Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)…); Grizzard v. State, 881 So. 2d 673, 675 (Fla. 5th DCA 2004) (quoting Carter’s statement that appellate court must determine whether trial court’s finding of willful and substantial violation was arbitrary, fanciful or unreasonable); Lane v. State, 761 So. 2d 476, 477 (Fla. 3d DCA 2000) (holding trial court did not abuse its discretion in finding violation was willful and substantial); Van Wagner v. State, 677 So. 2d 314, 316 (Fla. 1st DCA 1996) (using term “preponderance” of evidence); Young v. State, 566 S…
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Parker v. State, 843 So. 2d 871 (Fla. 2003)…e evidence” and "willful and substantial” standards in Carter is consistent with the bulk of recent precedent in the district courts reviewing probation revocations. See also Tobias v. State, 828 So. 2d 1066, 1068 (Fla. 4th DCA 2002); Lane v. State, 761 So. 2d 476, 477 (Fla. 3d DCA 2000); Thomas v. State, 760 So. 2d 1138, 1139 (Fla. 5th DCA 2000). These standards are more reliable gauges both for the trial court’s determination and appellate review than the less precise "conscience of the court” language of B…
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Duquesne v. State, 242 So. 3d 1183 (Fla. 3d DCA 2018)…or any day thereafter. Although we recognize that a homeless probationer may find it challenging to report to his probation officer as directed, homelessness alone does not justify or excuse a probationer’s failure to report. See Lane v. State, 761 So. 2d 476 (Fla. 3d DCA 5 2000). We, therefore, affirm the trial court’s finding that the defendant violated Condition (1) by failing to report. The record also clearly supports the trial court’s determination that the defendant violated Condition (5) o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Steiner v. State, 604 So. 2d 1265 (Fla. 4th DCA 1992)
- Gordon v. Winn Dixie Stores, Inc., 713 So. 2d 1121 (Fla. 4th DCA 1998)
- Amador v. State, 713 So. 2d 1121 (Fla. 3d DCA 1998)
- Hernandez v. State, 723 So. 2d 886 (Fla. 4th DCA 1998)