JULIO ORTIZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Julio Ortiz appealed the revocation of his probation for allegedly violating a condition requiring him to promptly and truthfully answer his probation officer's inquiries. The court reversed, finding that Ortiz's single misstatement about when he left work did not constitute a substantial willful violation warranting revocation.
The court reversed the revocation, holding that Ortiz's single misstatement did not constitute a substantial violation of his probation conditions. Given his lack of new law violations, completion of community service, and efforts to comply with other court orders, the conduct did not demonstrate unfitness for probation.
[1] A probationer's single misstatement about the time they left work does not necessarily constitute a substantial violation of probation, especially when other compliance e…
[2] A trial court abuses its discretion in revoking probation if the violation found does not rise to the level of a substantial violation.
Previewing 2 of 4 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“Ortiz did not have any new law violations, had completed his community service requirement, and was attempting to comply with court orders regarding court costs and costs of supervision. His single misstatement about the time that he left work did not demonstrate that he was unfit for probation.”
Establishes the court's reasoning that Ortiz's overall compliance record and single misstatement did not rise to a substantial violation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOrtiz pleaded guilty in October 2008 to failure to report his status as a sex offender and was placed on 36-month probation. On April 23, 2009, his pr…
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Julio Ortiz appeals the revocation of his probation and the resulting sentence for failure to report his status as a sex offender. Ortiz argues that the trial court abused its discretion in determining that he willfully and substantially violated condition nine of his probation by failing to promptly and truthfully answer his probation officer’s inquiries. We agree and reverse.
In October 2008, Ortiz pleaded guilty to one count of failure to report his status as a sex offender and was placed on probation for thirty-six months. On April 30, 2009, an affidavit of violation of probation was filed alleging that Ortiz had twice violated condition nine of his probation, which provides: “You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer te visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.” The State maintained that Ortiz violated condition nine by failing to comply with his probation officer’s instructions to be home at 5:30 p.m. on April 23, 2009, and by failing to truthfully answer his officer’s inquiries on April 24, 2009.
At the revocation hearing, Ortiz’s probation officer testified that he had previously made two unsuccessful attempts to visit Ortiz at his residence. On April 23, 2009, the officer called Ortiz at work and instructed him to be home at 5:30 p.m. that day so the officer could conduct his home visit. The officer waited until 6:40 p.m. but Ortiz did not show up. The following day, the probation officer called Ortiz to inquire about his whereabouts the previous day. Ortiz informed him that he left work at 4:45 p.m. but had gotten stuck in traffic. The officer heard Ortiz’s employer in the background stating that work wrapped up around 6 p.m.
The trial court found that Ortiz did not willfully fail to return home by the time instructed by his probation officer. The court, however, determined that Ortiz violated condition nine by being untruthful about the time he left work. The court revoked Ortiz’s probation, determined that he qualified as a violent felony offender of special concern, and sentenced him to 63.9 months in prison.1
On appeal, Ortiz argues that the trial court’s revocation was an abuse of discretion given his reasonable efforts to comply with the terms of his probation. See Benedict v. State, 774 So.2d 940, 941 (Fla. 2d DCA 2001). We agree. Ortiz did not have any new law violations, had complet*1022ed his community service requirement, and was attempting to comply with court orders regarding court costs and costs of supervision. His single misstatement about the time that he left work did not demonstrate that he was unfit for probation. See id. Under these circumstances, we cannot conclude that Ortiz’s conduct rose to the level of a substantial violation. See Audl v. State, 993 So.2d 1172, 1174 (Fla. 5th DCA 2008).
Accordingly, we reverse the order revoking Ortiz’s probation and remand with directions that Ortiz’s probation be reinstated.
Reversed and remanded with directions.
ALTENBERND and WALLACE, JJ„ Concur.
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Citator
Cited By
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Filmore v. State, 133 So. 3d 1188 (Fla. 2d DCA 2014)…ationer was waiting for his brother, who was assisting the probationer with job applications, was not substantial, that the State had not shown that the probationer was unfit for probation, and that revocation was “patently unfair”); Ortiz v. State, 54 So. 3d 1020, 1021-22 (Fla. 2d DCA 2011) (holding that the probationer’s misstatement about the time he left work in his explanation to his probation officer about why he was late did not demonstrate that the probationer was unfit for probation and was not a sub…
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Roscoe Brown v. State, 86 So. 3d 1225 (Fla. 2d DCA 2012)…on proceedings, the decision to revoke a defendant’s probation should be made “only when the probation violation is both willful and substantial so as to indicate that probation will not work for that defendant.” Id. at 262; see also Ortiz v. State, 54 So. 3d 1020, 1022 (Fla. 2d DCA 2011) (reinstating probation because the violation “did not demonstrate that [the probationer] was unfit for probation”). Otherwise, “[t]here may be circumstances where revocation is patently unfair.” Carter, 835 So. 2d at 262. O…
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Reggie Lee Cruz v. State, 81 So. 3d 501 (Fla. 4th DCA 2012)…e did not have any new law violations. Thus, when considering all of the terms of probation imposed, this violation cannot be deemed substantial. This single incident does not demon [*504] strate that Cruz is unfit for probation. See Ortiz v. State, 54 So. 3d 1020, 1021-22 (Fla. 2d DCA 2011) (holding that a single misstatement by probationer to his probation officer was not a substantial violation of probation and did not demonstrate that probationer was unfit for probation, where probationer did not have any…
Authorities Cited
- Benedict v. State, 774 So. 2d 940 (Fla. 2d DCA 2001)
- Andl v. State, 993 So. 2d 1172 (Fla. 5th DCA 2008)