JERRY WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the state failed to present sufficient evidence that the probationer's violations were willful and substantial.
[1] Probation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation, and the violation must be both…
[2] A single failure to file a monthly probation report, when the probationer has reported prior to and subsequent to that date, does not constitute a willful and substantial…
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Join FLexlaw to unlock all legal intelligenceThe probationer was accused of changing residence without consent and failing to file a monthly report. The probationer testified he was evicted and b…
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PER CURIAM.
In these consolidated appeals, appellant seeks review of the trial court’s order revoking his probation and imposing concurrent sentences of 24.07 months imprisonment. Appellant contends that the trial court erred in revoking his probation because the state failed to present suffi cient evidence to -demonstrate his probation violations were willful and substantial. We agree and reverse.
The charges contained in the affidavit of violation of probation alleged that appellant violated probation in each case by changing his residence without the consent of his probation officer and failing to file his monthly report for May 2003.
Only appellant and his probation supervisor testified at the hearing. The probation supervisor testified that he personally instructed appellant as to the terms of his probation, including the requirement that appellant obtain permission prior to moving,. and appellant understood the terms. He also testified that when he visited appellant’s home he found the house vacant with no furniture inside and no cars in the driveway. The probation supervisor further testified that he did not learn of appellant’s location until about a month later, when appellant came to his office and reported that he was living, on the street because his girlfriend kicked him out. According to the probation officer, appellant did not tell him that he had been evicted from his home. Appellant also failed to file a report with his probation officer for the month of May.
Appellant testified that he left his home after he and his girlfriend were evicted for failing to pay rent. He claimed that right after he was evicted he told the “officer of the day” at the probation office that he was homeless.
The reports contained in appellant’s probation file were entered into evidence. The report submitted for the month of June stated that appellant had a disagreement with his girlfriend and was looking for a new place. The report submitted for the month of August stated that appellant was going to missions for food.
It is well settled that “[pjrobation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation.” Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992) (citations omitted). The violation “must be both willful and substantial, and the willful and substantial nature of the violation must be supported by the greater weight of the evidence.” Id. (citations omitted). The standard of appellate review “of an order of probation revocation is whether the trial court abused its discretion.” Id. (citation omitted).
The evidence before the court clearly showed that appellant failed to file a report for the month of May. However, the evidence showed that appellant continually reported to the probation office. Each monthly report before and after May 2003 is acknowledged. The failure to file one monthly report, having reported prior to and subsequent to that date, does not constitute a willful and substantial violation of the terms of appellant’s probation. See Moore v. State, 632 So. 2d 199, 199 (Fla. 1st DCA 1994).
With regard to the allegation that appellant moved without permission, although there was testimony that appellant did, in fact, move without prior notification to his probation supervisor, there was also evidence that appellant was forced to leave his residence and was living on the street. Although it is up to the trial judge to weigh the evidence and determine the credibility of the witnesses, Demps v. State, 462 So. 2d 1074, 1075 (Fla.1984), the record does not reveal that appellant’s homelessness was intentional. Consequently, he cannot be said to have willfully failed to first obtain his probation supervisor’s consent before changing his residence. See Thomas v. State, 672 So. 2d 587, 589 (Fla. 4th DCA 1996) (finding defendant did not willfully fail, to obtain his probation officer’s consent before changing his residence because there was no evi dence that defendant had prior notice that he was being discharged from residence); Lynom v. State, 816 So. 2d 1218 (Fla. 2d DCA 2002) (finding state failed to demonstrate that defendant willfully violated probation by moving without consent where unrebutted evidence demonstrated that defendant was forced to move with only one day’s notice and defendant’s attempts to reach probation officer prior to move were unsuccessful).
REVERSED AND REMANDED with directions to dismiss violations of probation.
FARMER, C.J., SHAHOOD, J., and GREENE, CHARLES M., Associate Judge, concur.
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Garity v. State, 970 So. 2d 500 (Fla. 5th DCA 2007)…. State, 880 So .2d 749, 750 (Fla. 5th DCA 2004). As there was a complete absence of proof that Mr. Garity willfully and substantially violated his probation, we conclude that the trial court abused its discretion and reverse. See Williams v. State, 896 So. 2d 805, 806 (Fla. 4th DCA 2005) (violation of probation must be both willful and substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence); see also, Woodson v. State, 864 So. 2d 512, 514 (…
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Adams v. State, 946 So. 2d 583 (Fla. 4th DCA 2006)…A 2005); Osta v. State, 880 So. 2d 804 (Fla. 5th DCA 2004). “It is well settled that ‘[pjrobation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation.’ ” Williams v. State, 896 So. 2d 805, 806 (Fla. 4th DCA 2005) (quoting Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992)). The State must prove by the greater weight of the evidence that the probationer substantially violated a condition of probation. Blackshear v. State, 771…
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Bravo v. State, 268 So. 3d 193 (Fla. 2d DCA 2018)…beyond [her] control, rather than a deliberate act of misconduct, caused [her] noncompliance." Selig v. State, 112 So. 3d 746, 749 (Fla. 2d DCA 2013) (quoting Soto v. State, 727 So. 2d 1044, 1046 (Fla. 2d DCA 1999)); see also Williams v. State, 896 So. 2d 805, 806 (Fla. 4th DCA 2005) (holding that although 3At the hearing, the CCO implied a possibility of domestic violence between Bravo and her boyfriend. - 5 - the defendant had moved without notifying his probation officer, the failure to notify was…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bennie Demps v. State, 462 So. 2d 1074 (Fla. 1984)
- Steiner v. State, 604 So. 2d 1265 (Fla. 4th DCA 1992)
- Theron Thomas v. State, 672 So. 2d 587 (Fla. 4th DCA 1996)
- Lashon Grant v. State, 816 So. 2d 1218 (Fla. 5th DCA 2002)
- Lynom v. State, 816 So. 2d 1218 (Fla. 2d DCA 2002)
- Moore v. State, 632 So. 2d 199 (Fla. 1st DCA 1994)