JOHN M. KOTOWSKI, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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.
Trial court abused its discretion in revoking probation for failure to obtain consent to change residence when the defendant was involuntarily removed by court-ordered eviction, making prior consent impossible.
A probation condition requiring prior consent to change residence cannot be violated when the probationer is involuntarily removed by court order, as seeking prior consent would be futile.
[1] A probation condition requiring prior consent to change residence is not violated when the probationer is involuntarily removed by court-ordered eviction, as compliance w…
Previewing 1 of 1 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“his failure to obtain prior consent to change his residence was explained away in that to seek prior consent would have been a useless act”
Court's reasoning that the probation violation was excused by the impossibility of compliance
Kotowski was placed on probation in 1974 for uttering worthless checks with a condition prohibiting residence changes without supervisor consent. In D…
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.
Explore caselaw by topic → Browse Futility Doctrine cases and more on FLexlaw
PER CURIAM.
The question posed by this appeal is whether the trial court abused its discretion by revoking defendant’s probation and thereupon sentencing defendant to three years in the state prison.
In March, 1974, defendant was found guilty of uttering worthless checks and he was placed on probation for a period of five years. One of the conditions of defendant’s probation was that he not change his residence without consent of his probation supervisor. In March, 1975, defendant was charged with and thereafter found guilty of violation of probation for failure to obtain the necessary consent of his supervisor prior to moving from his approved residence which he occupied in 1974. At the revocation of probation hearing, the uncontrovert-ed evidence was that the defendant and his family were removed from their residence by a writ of possession issued in December, 1974, pursuant to a final judgment for removal of tenant obtained by the defendant’s landlord.
We agree with the defendant’s contention that his failure to obtain prior consent to change his residence was explained away in that to seek prior consent would have been a useless act. Cf. Brill v. State, 159 Fla. 682, 32 So. 2d 607 (1947). While the record reflects that the defendant was not cooperative in notifying his supervisor before or after he moved, we find that the trial court abused its discretion in revoking defendant’s probation for his failure to obtain the necessary consent prior to removing himself from his approved residence.
The order of revocation of probation and sentence are vacated and the defendant’s probation is reinstated.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980)…transferred to a federal prison on June 29, 1979. Since the “change of residence” under these circumstances was involuntary and by virtue of a court order, seeking his probation supervisor’s consent would have been a useless act. Kotowski v. State, 344 So. 2d 602 (Fla. 3d DCA 1977). The State contends, however, that appellant nevertheless had a duty to advise the super [*756] visor of his whereabouts, citing Watkins v. State, 368 So. 2d 363 (Fla. 2d DCA 1979). The facts of this case, however, are distinguish…
-
Aaron v. State, 400 So. 2d 1033 (Fla. 3d DCA 1981)…two grounds was error. The record reflects that the defendant did not notify his probation officer regarding the change in his employment status. The defendant testified that he had been discharged by two employers. Relying upon Kotowski v. State, 344 So. 2d 602 (Fla.3d DCA 1977), the defendant argues that this was sufficient legal justification to excuse his failure to notify his probation officer. In Kotowski, the defendant had been evicted from his residence and consequently we found that his failure to…
-
Watkins v. State, 368 So. 2d 363 (Fla. 2d DCA 1979)…act because he was virtually evicted from his approved residence for nonpayment of rent. Appellant relies on the decision of our sister court that held eviction by legal process to be a defense to violation of a similar condition. Kotowski v. State, 344 So. 2d 602 (Fla. 3d DCA 1977). It may very well be that eviction would constitute a defense to failure to obtain consent if consent were denied, but appellant neither requested consent to change his residence nor notified the probation officer of the alleged e…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brill v. State, 159 Fla. 682 (Fla. 1947)
- Gonzalez v. State, 159 Fla. 681 (Fla. 1947)