WALTER BLACKSHEAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this probation revocation appeal, the Florida District Court of Appeal reversed the trial court's finding of a violation of standard condition six (excessive intoxicant use) due to insufficient evidence, but affirmed the finding regarding condition one (failure to submit monthly reports). The court remanded for entry of a corrected written order and re-sentencing.
The court affirmed the trial court's finding that appellant willfully and substantially violated condition one by failing to submit monthly reports, but reversed the finding of a violation of condition six for lack of sufficient evidence of excessive intoxicant use. The court remanded for entry of a corrected written revocation order and re-sentencing.
[1] A trial court abuses its discretion in revoking probation if the violation is not willful and substantial.
[2] A trial court abuses its discretion by finding a probationer violated a condition for which there is insufficient evidence.
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Join FLexlaw to unlock all legal intelligence“A violation triggering a revocation of probation must be 'willful and substantial.'”
Establishes the legal standard required for probation revocation
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Join FLexlaw to unlock all legal intelligenceAppellant Blackshear was on probation with standard conditions including monthly reporting to his probation officer (condition one) and abstaining fro…
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PER CURIAM.
In this appeal from a revocation of appellant’s probation and re-sentencing, appellant argues that the trial court abused its discretion in finding that he had violated standard conditions one and six of his probation.
Additionally, appellant notes and the State concedes, the written order of revocation of probation is not consistent with the trial court’s oral pronouncement. The oral pronouncement indicated that the state failed to prove appellant’s ability to meet his financial obligation, and therefore, the appellant was found not guilty of the violation. We remand for an entry of a proper written revocation order setting forth the conditions of probation appellant was found to have actually violated and re-sentencing for the reasons set forth below. See Bloodworth v. State, 672 So. 2d 56 (Fla. 1st DCA 1996).
The standard of review for probation revocation orders is whether the trial court abused its discretion. See Bell v. State, 643 So. 2d 674, 675 (Fla. 1st DCA 1994). A violation triggering a revocation of probation must be “willful and substantial.” See State v. Meeks, 789 So. 2d 982, 987 (Fla.2001); Burgin v. State, 623 So. 2d 575, 576 (Fla. 1st DCA 1993).
We find there was sufficient evidence for the trial court to conclude that appellant willfully and substantially failed to satisfy condition one by failing to submit monthly reports to his probation officer.
However, in accordance with the dictates of Alston v. State, 646 So. 2d 184 (Fla.1994), we must reverse as to condition six for a lack of sufficient evidence of excessive intoxicant use or visiting a place that intoxicants are used. See also Blair v. State, 745 So. 2d 496 (Fla. 1st DCA 1999); Legree v. State, 739 So. 2d 616 (Fla. 1st DCA 1999); Hogan v. State, 583 So. 2d 426 (Fla. 1st DCA 1991).
While we must remand, we note, as did the supreme court in Alston, that a single positive urinalysis as in this case could constitute sufficient evidence that appellant violated standard condition five of his probation which required him to “live and remain in liberty without violating any law.” See Alston, 646 So. 2d at 185. We, therefore, advise the state that nothing in our opinion precludes it from initiating new revocation proceedings against appellant prior to the expiration of his probation, based on a properly charged violation of standard condition five.
Accordingly, we reverse and remand for re-sentencing and further proceedings consistent with this opinion.
ERVIN, WOLF and VAN NORTWICK, JJ., concur.
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Vernia Smith v. State, 100 So. 3d 253 (Fla. 3d DCA 2012)…s to excess” in violation of condition seven of his probation. [*255] Affirmed in part, reversed in part, and remanded for farther proceedings consistent with this opinion. . McGathey v. State, 71 So. 3d 224 (Fla. 2d DCA 2011); Blackshear v. State, 838 So. 2d 1228 (Fla. 1st DCA 2003); Blair v. State, 745 So. 2d 496 (Fla. 1st DCA 1999); Ross v. State, 701 So. 2d 635 (Fla. 2d DCA 1997). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).…
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Hostetter v. State, 82 So. 3d 1217 (Fla. 1st DCA 2012)…iolated probation as alleged. Probation was revoked, and appellant was re-sentenced to 24 months’ sex-offender community control. This court reviews the trial court’s decision to revoke probation for an abuse of discretion. See Blackshear v. State, 838 So. 2d 1228 (Fla. 1st DCA 2003). Appellant argues that the court erred in revoking probation based on Condition (9) because the probation officer himself fashioned the condition prohibiting contact with his girlfriend’s child during curfew. “Violation of a cond…
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Mier v. State, 58 So. 3d 319 (Fla. 1st DCA 2011)…5, 576 (Fla. 1st DCA 1993). Because it is in a better position to determine whether a violation is willful and substantial, the trial court’s decision will be reversed on appeal only if it constitutes an abuse of discretion. See Blackshear v. State, 838 So. 2d 1228, 1229 (Fla. 1st DCA 2003); Burgin, 623 So. 2d at 576. In Meade v. State, 799 So. 2d 430, 432 (Fla. 1st DCA 2001), this court said that “[i]t is well established that failure to keep an appointment due to transportation problems is a valid excuse an…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Meeks, 789 So. 2d 982 (Fla. 2001)
- Burgin v. State, 623 So. 2d 575 (Fla. 1st DCA 1993)
- Bell v. State, 643 So. 2d 674 (Fla. 1st DCA 1994)
- Hogan v. State, 583 So. 2d 426 (Fla. 1st DCA 1991)
- Alston v. State, 646 So. 2d 184 (Fla. 1994)
- Legree v. State, 739 So. 2d 616 (Fla. 1st DCA 1999)
- Blair v. State, 745 So. 2d 496 (Fla. 1st DCA 1999)
- Bloodworth v. State, 672 So. 2d 56 (Fla. 1st DCA 1996)