GREGORY SHIPMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gregory Shipman appealed the revocation of his probation and 24-month prison sentence, arguing that the trial court improperly found violations of probation conditions (unpaid court costs and uncompleted community service) when the probation order contained no deadline for completing these tasks. The Second District Court of Appeal reversed, holding that absent a specified time limit in the probation order, a probationer has the entire probationary term to complete such conditions.
A probation condition that lacks a specified deadline or time limit for completion is violated only if the probationer fails to complete it by the end of the full probationary term. Because Shipman's probation order did not specify when he must pay court costs or complete community service, and because he had substantial time remaining in his three-year probationary period, the trial court could not find him in violation for non-completion after only eight months.
[1] A probationer cannot be found to have willfully and substantially violated a condition requiring payment of court costs or completion of community service if the probatio…
[2] A probationer has the entire duration of their probation to complete tasks like paying court costs or performing community service when the probation order does not speci…
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Join FLexlaw to unlock all legal intelligence“the omission from a probation order of a specified date by which [a probationer] was required to complete [a particular] task combined with the fact that [the probationer] was not at the end of his probationary period results in the State's inability to prove a willful and substantial violation”
Establishes the controlling legal standard from Oates v. State that guides the court's decision
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Join FLexlaw to unlock all legal intelligenceIn 2002, Shipman was convicted of violating a domestic violence injunction and attempting to escape. He received 36 months' probation on one count and…
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CANADY, Judge.
Gregory Shipman challenges the trial court’s order revoking his probation and sentencing him to twenty-four months’ imprisonment. Because we conclude the record does not support the trial court’s determination that Shipman had violated certain conditions of his probation, we reverse.
In 2002, Shipman was charged with violating a domestic violence injunction (count II) and attempting to escape after he had been arrested (count I). Shipman entered a best interest guilty plea, and the court sentenced him to thirty-six months’ probation on count I and twelve months’ probation on count II, with both counts to run concurrently. Shipman’s probationary term began in May 2002 and was to expire in May 2005. As part of his probation, Shipman was ordered to pay court costs in the amount of $359 and was ordered to perform fifty hours of community service at the rate of five hours per month. Neither the court costs condition nor the community service condition contained a schedule indicating when Shipman was required to begin or to complete the tasks.
On February 25, 2003, the Department of Corrections filed an amended affidavit of violation of probation alleging, in pertinent part, that Shipman failed to pay court costs and failed to perform community service. After a hearing on December 18, 2003, the court found Shipman committed both violations, revoked his probation, and sentenced him to twenty-four months’ imprisonment. On appeal, Shipman contends, among other things, that “[njothing in the probation order required that Ship-man pay the court costs by a certain time within the three-year period,” and that the probation order likewise “did not specify a beginning and ending period for doing the community service work.” Shipman argues that in the absence of such requirements in the probation order, his failure to fulfill the conditions after eight months of his three-year probationary term did not constitute a violation of those conditions. We conclude that Shipman’s argument has merit.
In Oates v. State, 872 So. 2d 351, 353 (Fla. 2d DCA 2004), we relied on the rule that “the omission” from a probation order “of a specified date by which [a probationer] was required to complete [a particular] task” combined with “the fact that [the probationer] was not at the end of his probationary period” results in “the State’s inability to prove a willful 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 articulated in Oates and similar cases is applicable here. In Tracy v. State, 673 So. 2d 544, 544-45 (Fla. 4th DCA 1996), the rule was applied to circumstances identical to those present here.
[B]ecause the order placing him on [probation] did not specify either a payment schedule or a time limit for paying costs and fees, or a time limit for completing community service, appellant had the entire time of his probation in which to do so. This revocation, which occurred before the term was up, was thus improper. Id. (citation omitted).
Finally, we note that this case is not one in which the probationer due to his dilatory conduct has placed himself in a position where it will be impossible to satisfy a condition of his probation before the conclusion of the probationary term. Specifically with respect to the community service condition, more than adequate time remained for Shipman to complete his obligation by performing community service at the rate of five hours per month for the requisite number of months.
We therefore reverse the trial court’s order revoking Shipman’s probation.
Reversed.
ALTENBERND, C.J., and STRINGER, J., Concur.
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Shepard v. State, 939 So. 2d 311 (Fla. 4th DCA 2006)…andating payment of costs does not specify a time. Shepard argues to the contrary, that if the probation order does not specify the time or schedule for payment, the probationer has until the end of the probation period to pay. See Shipman v. State, 903 So. 2d 386, 387 (Fla. 2d DCA 2005)(reversing revocation of defendant’s probation for failure to pay court costs where no schedule or time period for payment was provided); see also Tracy v. State, 673 So. 2d 544, 544-5 (Fla. 4th DCA 1996)(reversing revocation…
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Dajuan Donya Bowser v. State, 937 So. 2d 1270 (Fla. 2d DCA 2006)…ationer] was required to complete [a particular] task’ combined with ‘the fact that [the probationer] was not at the end of his probationary period’ results in ‘the State’s inability to prove a willful and substantial violation.’ ” Shipman v. State, 903 So. 2d 386, 387 (Fla. 2d DCA 2005) (quoting Oates v. State, 872 So. 2d 351, 353 (Fla. 2d DCA 2004)); see also Bryant v. State, 931 So. 2d 251, 253 (Fla. 2d DCA 2006) (holding that “the State cannot prove a willful and substantial violation of a condition to co…1 / 2
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Jamarius Pollard v. State, 930 So. 2d 854 (Fla. 2d DCA 2006)…uring the remaining twenty-two months of his community control. Despite this, the trial court found that Pollard had willfully and substantially violated condition 27 by failing to complete his required community service hours. In Shipman v. State, 903 So. 2d 386, 387 (Fla. 2d DCA 2005), this court held that the State cannot prove a willful and substantial violation of a condition to complete, community service hours, even when the order contains a per-month rate of completion, when the order does not contai…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000)
- Melecio v. State, 662 So. 2d 408 (Fla. 1st DCA 1995)
- Oates v. State, 872 So. 2d 351 (Fla. 2d DCA 2004)
- Lashon Grant v. State, 816 So. 2d 1218 (Fla. 5th DCA 2002)
- Lynom v. State, 816 So. 2d 1218 (Fla. 2d DCA 2002)
- O'Neal v. State, 801 So. 2d 280 (Fla. 4th DCA 2001)
- Tracy v. State, 673 So. 2d 544 (Fla. 4th DCA 1996)
- Gessner v. State, 890 So. 2d 565 (Fla. 2d DCA 2005)
- Spayde v. State, 899 So. 2d 1274 (Fla. 2d DCA 2005)