PAUL THOMAS BERNIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Thomas Bernier appeals the revocation of his probation based on two alleged violations. The court affirms the revocation but remands to strike the violation of condition thirty-five (failure to complete anger management course), as sufficient time remained in the probationary period for completion.
The court affirmed the revocation of probation based on the violation of condition three (unauthorized residence change) but reversed the finding of violation of condition thirty-five (failure to complete anger management course) because sufficient time remained in the probationary period for completion. The revocation is affirmed because the trial court would have revoked probation based solely on condition three.
[1] A trial court may revoke a defendant's probation only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violati…
[2] A probationer violates a condition requiring permission to change residence by moving without the probation officer's consent.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial court may revoke a defendant's probation or community control only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violation.”
Establishes the legal standard for probation revocation that the court applies throughout the opinion.
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Join FLexlaw to unlock all legal intelligenceBernier was placed on probation on June 20, 2005, for several offenses. He was alleged to have violated eight probation conditions. The trial court fo…
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[*22] DAVIS, Judge.
Paul Thomas Bernier challenges the revocation of his probation, which was based on violations of conditions three and thirty-five of his probation. We affirm the revocation but remand with instructions that the violation of condition thirty-five be stricken.
While on probation for several offenses, Bernier was alleged to have violated eight of the conditions of his probation. Following a violation of probation hearing, the trial court found that Bernier violated two of the conditions of his probation — condition three for changing his residence without his probation officer’s permission and condition thirty-five for failing to successfully complete an anger management course. Accordingly, the trial court revoked his probation and sentenced him to concurrent five-year prison terms.
“A trial court may revoke a defendant’s probation or community control only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violation.” Dundas v. State, 891 So. 2d 1178,1179 (Fla. 2d DCA 2005).
Because Bernier himself testified that he did move from his approved residence without first procuring the consent of his probation officer, we affirm the trial court’s finding that he violated condition three of his probation.
However, condition thirty-five required Bernier to “enter and complete anger management classes (within 1 year).” Bernier was placed on probation on June 20, 2005; the affidavit of violation was filed September 20, 2005. Because Bernier had nine months remaining in which to successfully complete the anger management classes, it was error to find him in violation of this condition. See Davis v. State, 862 So. 2d 931, 934 (Fla. 2d DCA 2004) (“This court has consistently reversed revocations of probation based on a probationer being terminated from a treatment program when sufficient time remained in the probationary period to complete the program.”); see also Dunkin v. State, 780 So. 2d 223 (Fla. 2d DCA 2001) (concluding that violation was not willful and substantial where condition of probation required completion of sex offender treatment program within first three years of probation but did not specify that program had to be completed on the first try or how many chances probationer had to complete the program). Accordingly, the violation of this condition of probation should be stricken. See Massaline v. State, 937 So. 2d 1266 (Fla. 2d DCA 2006).
Nevertheless, the record before us is clear that the trial court would have revoked Bernier’s probation based solely on the violation of condition three. See Mas-saline, 937 So. 2d 1266. Accordingly, we affirm the revocation of Bernier’s probation but remand with instructions that the violation of condition thirty-five be stricken.
Affirmed; remanded with instructions.
VILLANTI and LaROSE, JJ., Concur.
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Tirado v. State, 69 So. 3d 1005 (Fla. 2d DCA 2011)…heless, it is abundantly clear from the transcript of the revocation hearing that the trial court would have revoked Tirado’s community control based solely on his violations of condition five (three new law violations). See, e.g., Bernier v. State, 951 So. 2d 21, 22 (Fla. 2d DCA 2007) (upholding revocation of probation order where record made it clear that the court would have revoked probation solely on the basis of a violation of a single condition of probation). Therefore, we affirm the order revoking co…
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Darriohn Myvar Pryor v. State, 151 So. 3d 61 (Fla. 2d DCA 2014)…See Beecham v. State, 652 So. 2d 1275, 1275 (Fla. 3d DCA 1995). However, we affirm the revocation of Pryor’s probation because it is clear that the trial court would have revoked his probation based on the other two violations. See Bernier v. State, 951 So. 2d 21, 22 (Fla. 2d DCA 2007). Affirmed; remanded. KHOUZAM and CRENSHAW, JJ., concur.…
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Mullins v. State, 174 So. 3d 616 (Fla. 2d DCA 2015)…obation officer when he reported his permanent residence. However, we affirm the revocation of Mr. Mullins’s probation because it is clear that the trial court would have revoked his probation based on the other two violations. See Bernier v. State, 951 So. 2d 21, 22 (Fla. 2d DCA 2007). Accordingly, we affirm that part of the revocation order finding that Mr. Mullins violated conditions one' and five of his probation. We remand for the trial court to enter an order of revocation that deletes the finding th…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sweat Transp., Inc. v. Mena, 862 So. 2d 931 (Fla. 3d DCA 2004)
- Davis v. State, 862 So. 2d 931 (Fla. 2d DCA 2004)
- Dunkin v. State, 780 So. 2d 223 (Fla. 2d DCA 2001)
- Dundas v. State, 891 So. 2d 1178 (Fla. 2d DCA 2005)
- Candelaria v. State, 937 So. 2d 1266 (Fla. 2d DCA 2006)
- Learia Chad Massaline v. State, 937 So. 2d 1266 (Fla. 2d DCA 2006)