STANLEY LEE WHITE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stanley Lee White appeals the trial court's revocation of his probation for sex offenses, challenging findings that four incidental contacts with minors violated his probation condition prohibiting unsupervised contact with children. The appellate court found that two of the four alleged violations were not proven by a preponderance of the evidence and reversed as to those contacts, remanding for the trial court to determine whether revocation would be warranted based on the remaining violations alone.
The court held that the State failed to prove by a preponderance of the evidence that the two incidental contacts (the church elevator encounter and the approach by the child relative) constituted willful and substantial violations, and the trial court abused its discretion in finding such violations. The court found no abuse of discretion regarding the other two incidents. The court did not address the hearsay argument because it was not preserved at trial.
[1] A probationer violates a substantial condition of probation only if the violation is proven by a preponderance of the evidence to be willful and substantial.
[2] Incidental, non-initiated contact with a minor, even if without another adult present, may not constitute a willful and substantial violation of probation.
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“To establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.”
Establishes the legal standard that the State must satisfy to prove a probation violation; the court applied this standard to find the two incidental contacts did not meet this burden.
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Join FLexlaw to unlock all legal intelligenceWhite pleaded nolo contendere in 2001 to two counts of lewd, lascivious, or indecent assault upon a child and one count of sexual performance by a chi…
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Appellant challenges the trial court’s revocation of his probation, arguing the trial court abused its discretion by finding he violated his probation based on four contacts with a minor outside the presence of another adult, and also that the trial court improperly revoked his probation based solely on hearsay evidence.1 We find merit in Appellant’s argument as to two of the four contact violations. We find no merit in the remainder of Appellant’s contentions.
Appellant pled nolo contendere in 2001 to two counts of lewd, lascivious, or indecent assault or act upon or in the presence of a child and one count of sexual performance by a child. One of the requirements of Appellant’s probation was that he have no contact with a child under the age of 18 without the presence of another adult. Appellant’s probation officer testified at the violation of probation hearing that, when confronted with his prior statements in the context of a polygraph examination, Appellant acknowledged four incidents of contact with a child under age 18. We address only the two incidents that we hold did not constitute a willful and substantial violation of this probation requirement.
In one instance, Appellant was at church getting in an elevator when a minor approached him and asked him a question. In the other instance, Appellant was unloading his vehicle when he was approached by a child relative. This was the extent of the State’s evidence as to these alleged violations. Although the trial court noted at the hearing that these two encounters were incidental and not initiated by Appellant, the court found they were willful and substantial violations of the prohibition against contact with children without the presence of another adult.
“To establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 814, 816 (Fla. 1st DCA 1996). Based on the record before us, the State did not prove either a willful or substantial violation by a preponderance of the evidence, and the trial court abused its discretion by finding these two contacts violated this condition of Appellant’s probation.
As noted, the trial court found the other two incidents were also willful and substantial violations. We find no abuse of discretion as to these findings. We remand, however, “for a determination by the trial court as to whether it would revoke Appellant’s probation based on [the remaining] violation[s] alone” and, if so, whether it would impose the same sentence. Smith v. State, 49 So.3d 833, 835 (Fla. 1st DCA 2010).
As for Appellant’s hearsay argument, no such objection was made below; thus, the issue was not preserved.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.
VAN NORTWICK, THOMAS, and ROWE, JJ., concur.
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Kleintank v. State, 178 So. 3d 15 (Fla. 5th DCA 2015)…to enter a restitution order. See Farley v. State, 55 So. 3d 721, 721-22 (Fla. 5th DCA 2011). Accordingly, we strike the restitution order. On remand,' the trial court may conduct a restitution hearing with Kleintank present. See Williams v. State, 76 So. 3d 410 (Fla. 1st DCA 2012) (holding defendant has constitutional right to be present at restitution hearing unless defendant knowingly, intelligently, and voluntarily waives that right). AFFIRMED in part; REVERSED in part; and REMANDED. PALMER, J., and…
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Brown v. State, 221 So. 3d 731 (Fla. 1st DCA 2017)…d sentenced him to 60 months in prison. Analysis “ ‘To establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.’ ” White v. State, 76 So. 3d 410, 411 (Fla. 1st DCA 2012) (quoting Van Wagner v. State, 677 So. 2d 314, 316 (Fla. 1st DCA 1996)). Where the State alleges that the probationer violated the terms of probation by committing a new law violation, “[pjroof sufficient to support a crimina…
Authorities Cited
- VAN Wagner v. State, 677 So. 2d 314 (Fla. 1st DCA 1996)
- Quinton Lavar Smith v. State, 49 So. 3d 833 (Fla. 1st DCA 2010)