JAMARIUS POLLARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2006-06-16
No. 2D05-527
FULMER, C.J., and WHATLEY, J., Concur.
930 So. 2d 854 Florida District Court of Appeal, Second District (2006) Positive Treatment
Cited by 17 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Jamarius Pollard appeals the revocation of his community control, arguing insufficient evidence of willful and substantial violations. The court affirmed the revocation based on violations of two conditions but remanded to strike a finding regarding community service hours, holding that without a specified completion deadline and with sufficient time remaining, the State cannot prove a willful and substantial violation.


Holding

The court affirmed the revocation based on violations of conditions 12 and 32, but held that the State failed to prove a willful and substantial violation of condition 27 because the community control order lacked a specified completion deadline and Pollard had sufficient time remaining to complete his service hours. The court remanded to strike the condition 27 violation finding.


Headnotes

[1] A willful and substantial violation of a community control condition requiring community service hours cannot be proven when the order lacks a specific completion date an…

[2] A trial court's finding of a willful and substantial violation of a community control condition may be affirmed if other violations, independent of the unsupported findin…

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Key Quotes

“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 contain a beginning and ending date for completing the hours and when there is sufficient time remaining for the probationer to complete the required hours at the required rate.”

Establishes the legal standard from Shipman v. State requiring both a specified deadline and lack of sufficient time remaining to prove a willful and substantial violation of community service conditions.

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Facts & Procedural History

Pollard pleaded guilty to attempted robbery with a firearm in April 2003 and was sentenced to six years of youthful offender probation. After a probat…

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Opinion of the Court
STRINGER, Judge.

STRINGER, Judge.

Jamarius Pollard appeals the revocation of his community control, contending that the evidence was insufficient to establish that he had willfully and substantially violated the terms of his community control. We affirm the revocation of Pollard’s community control based on the trial court’s finding that Pollard willfully and substantially violated conditions 12 and 32. However, we remand for the-trial court to strike the finding of a violation of condition 27 because there was insufficient evidence to establish a willful and substantial violation of this condition.

In April 2003, Pollard pleaded guilty to a charge of being a principal to an attempted robbery with a firearm. He was sentenced to six years of youthful offender probation. In June 2004, after the court found that Pollard had violated his probation, Pollard was resentenced to two years of youthful offender community control. In November 2004, the Department of Corrections filed an affidavit of violation of community control contending, among other things, that Pollard had violated condition 27 of his community control. Condition 27 required Pollard to complete 100 hours of community service at the rate of five hours per month during the term of his community control.

At the revocation hearing, Pollard’s probation officer testified that Pollard had failed to complete any community service hours in either September or October 2004. However, she admitted that Pollard had already completed seventy-five hours and had only twenty-five-hours left to complete during 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 contain a beginning and ending date for completing the hours and when there is sufficient time remaining for the probationer to complete the required hours at the required rate.

“[T]he 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.”

Id. (quoting Oates v. State, 872 So. 2d 351, 352 (Fla. 2d DCA 2004)).

In this case, Pollard’s community control order did not contain a specified date by which Pollard was to complete his community service hours, and he was not at the end of his period of community control. Pollard had more than sufficient time to complete his remaining twenty-five hours of community service during his community control period. The State presented no evidence that Pollard had refused to complete the remaining hours or was actively avoiding this requirement. Thus, the State failed to prove a willful and substantial violation of condition 27.

Despite the fact that the State failed to prove a violation of condition 27, we affirm the revocation of Pollard’s community control because it is clear from the record that the trial court would have revoked Pollard’s community control based solely on the violations of conditions 12 and 32. However, we remand for the trial court to strike the finding concerning the violation of condition 27 and enter a corrected revocation order. Affirmed and remanded with instructions.

FULMER, C.J., and WHATLEY, J., Concur.


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Citator

Cited By

  • Dean v. State, 948 So. 2d 1042 (Fla. 2d DCA 2007)
    …ty service hours at the rate of five hours per month. The State rightfully concedes error on this point. There was no starting or ending date specified in the probation order as well as no evidence of Dean’s refusal to perform. See Pollard v. State, 930 So. 2d 854, 855 (Fla. 2d DCA 2006) (citing Shipman v. State, 903 So. 2d 386, 387 (Fla. 2d DCA 2005)) (“[T]he State cannot prove a willful and substantial violation of a condition to complete community service hours, even when the order contains a per-month rat…
  • Martin v. State, 937 So. 2d 714 (Fla. 1st DCA 2006)
    …lant was not guilty of violating condition 24, failing to complete the community service hours, because, although appellant had not yet served fifty hours, he had until the end of his probation to complete the prescribed hours. See Pollard v. State, 930 So. 2d 854, 855 (Fla. 2d DCA 2006) (“[T]he State cannot prove a willful and substantial violation of a condition to complete community service hours ... when the order does not contain a beginning and ending date for completing the hours and when there is suff…
  • Reed v. State, 127 So. 3d 817 (Fla. 2d DCA 2013)
    …have revoked Mr. Reed’s community control and imposed the same sentence based solely on Mr. Reed’s single violation of condition 5 and the four violations of the condition that required him to remain confined to his residence. See Pollard v. State, 930 So. 2d 854, 856 (Fla. 2d DCA 2006); Ogletree v. State, 886 So. 2d 420, 421 (Fla. 2d DCA 2004); Baker v. State, 789 So. 2d 410, 411 (Fla. 4th DCA 2001). Finally, as argued by Mr. Reed and conceded by the State, the revocation order contains numerous flaws. It…

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