JAY GOERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2016-06-15
No. 2D15-338
LaROSE and SALARIO, JJ., Concur.
193 So. 3d 1068 Florida District Court of Appeal, Second District (2016) Positive Treatment
Cited by 1 case

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

Jay Goers appealed the revocation of his probation for allegedly violating conditions requiring him to obtain permission before changing his residence and to comply with his probation officer's instructions. The court reversed, holding that Goers did not willfully or substantially violate his probation because he did not physically change his residence and only updated his driver's license address after receiving approval from the sheriffs office.


Holding

The court held that Goers did not willfully or substantially violate his probation. The court reasoned that the express language of the probation condition required consent before changing his residence, not his driver's license, and that Goers made reasonable efforts to comply with both conditions by not physically moving without approval and by notifying his probation officer of the address change.


Headnotes

[1] A probationer cannot be found to have willfully violated a substantial condition of probation if the State fails to prove the violation.

[2] The language used in a condition of probation is determinative of a probationer's duties and responsibilities.

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Key Quotes

“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 for proving probation violations that the State failed to meet in this case.

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Facts & Procedural History

Goers pleaded guilty to failing to register as a sex offender and received five years' probation. His probation required that he not change his reside…

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Opinion of the Court
SLEET, Judge.

SLEET, Judge.

Jay Goers appeals his judgment and sentence following the revocation of his probation. Because the State failed to prove that Goers willfully violated a substantial condition of his probation, we reverse and remand for the reinstatement of his supervision.

In exchange for his plea to failing to register as a sex offender, Goers was initially sentenced to five years’ probation. Shortly thereafter, the State filed an affidavit alleging that Goers violated condition three, which required that he “not change [his] residence ... without first procuring the consent of [his] officer,” and condition nine, which required that he comply with all instructions given by his probation officer. At the subsequent violation hearing, the State put on evidence that Goers changed the address on his driver’s license without the prior permission of his probation officer. It was undisputed that Goers did not move to the new address nor did he intend to move until after it had been *1069approved by his probation officer and that he received approval of the new address from the sheriffs office prior to changing his license. Goers’ probation officer testified that he called and left a message with her office regarding the proposed new ád-dress and that he provided a copy of his new driver’s license immediately after the change. She also explained that one of Goers’ probation goals was to obtain permanent housing and that she ultimately approved the new address after she visited and checked it for compliance. Based on this evidence, the trial court found that Goers willfully and substantially violated his probation, revoked Goers’ probation, and sentenced him to fifty months’ prison.

“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.” Lynom v. State, 816 So.2d 1218, 1221 (Fla. 2d DCA 2002). On appeal, the State does not dispute that Goers never actually moved from his approved temporary housing. Instead, it argues that when Goers changed the address on his license it amounted to a change of residence and that he thereby willfully and substantially violated conditions three and nine of his probation. We disagree.

“[T]he language used in a condition of probation is determinative of a probationer’s duties and responsibilities while on probation.” Odom v. State, 15 So.3d 672, 677 (Fla. 1st DCA 2009) (alteration in original) (quoting Stanley v. State, 922 So.2d 411, 414 (Fla. 5th DCA 2006)). The express language of condition three required Goers to obtain the consent of his probation officer before changing his residence. Goers’ probation order made no reference to whether he needed that same permission to update his driver’s license. The evidence presented at the hearing showed that Goers reasonably complied with conditions three and nine and that any failure on his part to comply completely did not amount to a willful or substantial violation. See Lynom, 816 So.2d at 1221 (“Where a probationer makes reasonable efforts to comply with a condition of probation, violation of the condition cannot be deemed ‘willful.’ ”); Hines v. State, 789 So.2d 1085, 1087 (Fla. 2d DCA 2001); Odom, 15 So.3d at 675 (“Reasonable efforts to comply with a condition of probation cannot be deemed a willful violation.”).

The undisputed evidence reflected that Goers did not physically change his residence without his probation officer’s consent. Therefore, the State has failed to prove a violation of condition three. Because Goers did not violate condition three, he did not fail to comply with his probation officer’s instruction “to comply with all terms and conditions of probation.” Therefore, the State has also failed to prove a violation of condition nine. Accordingly, the trial court abused its discretion when it revoked Goers’ probation. We reverse Goers’ fifty-month prison sentence and remand for the trial court to 'reinstate his probation.

Reversed and remanded with instructions.

LaROSE and SALARIO, JJ., Concur.


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