EDWARD GESSNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in revoking probation because the State failed to prove willful and substantial violations of the probation conditions.
Edward Gessner appealed the revocation of his probation for violating conditions requiring completion of a sex offender treatment program and timely c…
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PER CURIAM.
Edward Gessner appeals the revocation of his probation based on the violation of two conditions. We reverse the order of revocation of probation as to both conditions.
First, the trial court found that Gessner violated condition twenty-five of his probation, which required Gessner to successfully complete an out-patient sex offender treatment program. However, the order of probation did not provide a scheduled time for him to successfully complete the program nor did it provide how many chances Gessner would have to complete the program. Because Gessner had time remaining on his probation for him to successfully complete an out-patient sex offender treatment program, the State did not establish a willful and substantial violation. See, e.g., Wilkerson v. State, 884 So. 2d 153 (Fla. 2d DCA 2004); Mitchell v. State, 871 So. 2d 1040 (Fla. 2d DCA 2004); Davis v. State, 862 So. 2d 931 (Fla. 2d DCA 2004); Lawson v. State, 845 So. 2d 349 (Fla. 2d DCA 2003). But see Woodson v. State, 864 So. 2d 512 (Fla. 5th DCA 2004). As we did in Mitchell, we certify conflict with the Fifth District’s decision in Wood-son.
In addition, the trial court found that Gessner violated condition five by failing to change his address with the Department of Motor Vehicles within forty-eight hours. We conclude, based on the review of the record, that the State did not prove by a preponderance of the evidence that Gessner willfully and substantially violated condition five.
Accordingly, we reverse the order of revocation and remand for the trial court to reinstate Gessner’s probation.
Reversed and remanded; conflict certified.
CASANUEVA and STRINGER, JJ„ and THREADGILL, EDWARD F., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shipman v. State, 903 So. 2d 386 (Fla. 2d DCA 2005)…and substantial violation.” A probation condition requiring the probationer “to complete domestic violence treatment” was the task at issue in Oates, 872 So. 2d at 353. See also Spayde v. State, 899 So. 2d 1274 (Fla. 2d DCA 2005); Gessner v. State, 890 So. 2d 565 (Fla. 2d DCA 2005); Lynom v. State, 816 So. 2d 1218 (Fla. 2d DCA 2002); Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000); O’Neal v. State, 801 So. 2d 280 (Fla. 4th DCA 2001); Melecio v. State, 662 So. 2d 408 (Fla. 1st DCA 1995). The rule articula…
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Adams v. State, 979 So. 2d 921 (Fla. 2008)…cond District Court of Appeal holding that, under such circumstances, revoking probation does constitute an abuse of discretion. See Mitchell v. State, 871 So. 2d 1040 (Fla. 2d DCA 2004), review dismissed, 911 So. 2d 93 (Fla.2005); Gessner v. State, 890 So. 2d 565, 566 (Fla. 2d DCA 2005). We have jurisdiction, see art. V, § 3(b)(3), and accepted review to resolve the conflict. See Adams v. State, 963 So. 2d 702 (Fla.2007) (accepting review). We hold that, even where the probation order does not specify a dea…
Authorities Cited
- Dwaine Woodson v. State, 864 So. 2d 512 (Fla. 5th DCA 2004)
- Mitchell v. State, 871 So. 2d 1040 (Fla. 2d DCA 2004)
- Sweat Transp., Inc. v. Mena, 862 So. 2d 931 (Fla. 3d DCA 2004)
- Davis v. State, 862 So. 2d 931 (Fla. 2d DCA 2004)
- Lawson v. State, 845 So. 2d 349 (Fla. 2d DCA 2003)
- Wilkerson v. State, 884 So. 2d 153 (Fla. 2d DCA 2004)