Opinion
No. 95-3589.
June 25, 1996.
Appeal from the Circuit Court, Leon County, L. Ralph Smith, Jr., J.
Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Douglas Gurnic, Assistant Attorney General, Tallahassee, for Appellee.
Appellant seeks review of prison sentences entered following revocation of his probation. He was alleged to have violated his probation by moving from his established residence and failing to enter the Probation and Restitution Center. Based principally on the testimony of his probation officer that she was aware of and had approved appellant's actions, and that she did not believe that any violation had occurred, we agree with appellant that the state failed to establish by the greater weight of the evidence that appellant had willfully violated either of the conditions in question. See, e.g., Love v. State, 606 So.2d 755 (Fla. 2d DCA 1992) (noncompliance based on confusion or miscommunication not willful); Stevens v. State, 599 So.2d 254 (Fla. 3d DCA 1992) (noncompliance based on ineptness or negligence not willful); Jacobsen v. State, 536 So.2d 373 (Fla. 2d DCA 1988) (failure to comply not willful as long as effort to do so is reasonable). Accordingly, we vacate appellant's sentences, reverse the finding that appellant had violated his probation and remand with directions that the trial court reinstate appellant's probation.
REVERSED and REMANDED, with directions.
ALLEN and WEBSTER, JJ., concur.
LAWRENCE, J., dissents with written opinion.
I respectfully dissent from the majority position that Howard did not willfully violate his probation. Howard was ordered to live at the Probation and Restitution Center (PRC) in Tallahassee as a special condition of his probation. He reported there on the day of his sentencing, February 6, 1995, but before the court documents authorizing his residence arrived at the PRC. He was told to report back on February 8, 1995, which he did, but without adequate clothing and other personal effects, requesting permission to travel to Thomasville, Georgia, to obtain these items. He was referred to his probation officer, but instructed by the PRC officer to return not later than February 10, 1995. His probation officer granted Howard permission to travel to Thomasville for the limited purpose of obtaining the necessary personal items. After arriving in Thomasville, Howard called his probation officer and said he could not get the money to return to Tallahassee; she told him to let her know when he could return. Howard did not contact his probation officer again for a period of two and one-half weeks.
I agree that it would have been improper to revoke Howard's probation if he had returned from Thomasville to Tallahassee within a reasonable time after obtaining permission to travel to Thomasville for the purpose of obtaining clothing. However, when Howard failed to return during the subsequent period of two and one-half weeks, without any cause, and without contacting any person having supervision over him, the trial judge was justified in finding him to be in willful violation of his probation.
Howard was no stranger to the importance of obeying conditions of supervision. He was on or had been on community control and probation for several felony and misdemeanor offenses, and had previously violated his orders of community control in the instant cases. I am unable to conclude that the trial judge committed error in determining by the greater weight of the evidence that Howard willfully violated his probation. I would affirm the sentence imposed by the trial judge following revocation of probation.