MICHAEL PERSON, A.K.A. MICHAEL PEARSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2012-03-14
No. 3D10-2211
Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
83 So. 3d 940 Florida District Court of Appeal, Third District (2012)

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

Michael Person appealed the revocation of his probation and resulting 30-year sentence. The Florida appellate court found that three of five violations cited by the trial court were unsupportable and struck them, affirming the revocation based only on two valid violations (driving without a valid license and failing to report timely to his probation officer) and remanding for resentencing.


Holding

Three of the five violations were unsupportable: the aggravated battery charge (mere arrest insufficient), the failure to attend substance abuse evaluation (not a standard condition and not clearly enunciated), and the failure to file job search logs (no written or oral order requiring such filing). The two remaining violations—driving without a valid license and failing to report timely to probation officer—were valid grounds for revocation.


Headnotes

[1] A probation violation cannot be established by a mere arrest for an offense.

[2] A probationer cannot be found in violation for failing to comply with a condition of probation that was not clearly enunciated in the oral pronouncement or written order.

Previewing 2 of 6 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

Key Quotes

“While the court found that there was probable cause for his arrest on that charge, a mere arrest is obviously insufficient to establish a violation.”

Establishes that probable cause for arrest does not satisfy the preponderance of the evidence standard required to prove a probation violation.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Person was placed on probation subject to various conditions. The trial court found five separate violations: (1) aggravated battery, (2) failure to a…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

Of the five separate violations found by the trial court in its order of July 22, 2010,1 resulting in the revocation of Person’s probation and ensuing maximum thirty-year sentence, we find that three are unsupportable:

1. Whde Person was charged with an aggravated battery in violation of condition K4 by failing to live and remain at liberty without violating any law, the trial court found that the offense had not been established even by a preponderance of the evidence, as required to support a probation violation. While the court found that there was probable cause for his arrest on that charge, a mere arrest is obviously insufficient to establish a violation. See Hines v. State, 358 So.2d 183, 185 (Fla.1978); Hernandez v. State, 33 So.3d 143 (Fla. 2d DCA 2010); Sharpston v. State, 895 So.2d 1225 (Fla. 2d DCA 2005).

2. The claimed violation by Person’s failure to attend a substance abuse evaluation cannot stand because there is no such standard condition of probation, and none was clearly enunciated during the oral pronouncement of additional ones.2 See Lawson v. State, 969 So.2d 222, *942227 n. 3 (Fla.2007); Cole v. State, 932 So.2d 1123 (Fla. 4th DCA 2006); Parrish v. State, 898 So.2d 1074 (Fla. 1st DCA 2005).

3. It was alleged that Person had violated condition L3 of the order of probation in that he failed to file job search logs. Because there was no orally pronounced or written order which required the filing of such documents, he could not have been violated on this ground. See Williamson v. State, 43 So.3d 843 (Fla. 1st DCA 2010); Bell v. State, 24 So.3d 712 (Fla. 2d DCA 2009); Morales v. State, 518 So.2d 964 (Fla. 3d DCA 1988). The trial judge, however, found that he had violated condition L4 “by failing to being gainfully employed as evidenced by his failure to submit weekly job search logs as instructed by his probation officer.” (emphasis added). This finding is also unsustainable because (a) it represents a deviation from the accusations of the affidavit of violation of probation; see Garcia v. State, 73 So.3d 823 (Fla. 5th DCA 2011); Wilson v. State, 506 So.2d 1170 (Fla. 3d DCA 1987), and (b) there was insufficient evidence as to whether he had in fact failed to be “gainfully employed.” See Galego v. State, 27 So.3d 152 (Fla. 3d DCA 2010); Mitchell v. State, 607 So.2d 486 (Fla. 3d DCA 1992). Accordingly, violations 2, 3, and 5 are stricken from the order revoking probation.

We do find that the remaining two violations, driving without a valid license and failing to report timely to his probation officer, were both lawfully imposed and correctly found to have been violated. See Mata v. State, 31 So.3d 257 (Fla. 4th DCA 2010); Blake v. State, 21 So.3d 129 (Fla. 3d DCA 2009); Thompson v. State, 994 So.2d 468 (Fla. 3d DCA 2008). While we affirm the revocation based upon the latter two grounds, violations 1 and 4, we remand for resentencing based only on those two violations we have approved. See Blake, 21 So.3d at 129; Estevez v. State, 705 So.2d 972 (Fla. 3d DCA 1998).

Affirmed in part, reversed in part, and remanded for resentencing.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited (17 total)

View all 17 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw