Burgin v. State, 92-3409
| Decision Date | 23 August 1993 |
| Docket Number | No. 92-3409,92-3409 |
| Citation | 623 So.2d 575 |
| Parties | 18 Fla. L. Weekly D1869 Richard BURGIN, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and Chris W. Hoeg, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Sonya Roebuck Horbelt, Asst. Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, Richard W. Burgin, Jr., appeals the judgment adjudicating him guilty of violation of probation. Appellant contends the evidence failed to establish that he willfully and substantially violated the conditions of his probation, and the trial court failed to make the requisite finding that appellant had the ability to pay before revoking his probation for failure to pay restitution and court costs. We affirm but remand to have the written revocation order conform to the trial court's oral pronouncement.
On November 5, 1991, appellant pled nolo contendere to forgery and uttering a forged instrument. Under the terms of the plea agreement, appellant was placed on probation for a period of two years, and required to perform fifty hours of community service work, to pay restitution, and to pay court costs of $425. The trial court withheld adjudication of guilt, and imposed two concurrent two-year terms of probation, together with the other sanctions provided in the plea agreement.
On December 23, 1991, an affidavit of violation of probation was filed, alleging that appellant violated five conditions of his probation. This appeal is concerned primarily with the alleged violation of Condition (1), the requirement that appellant submit a report to his probation officer on the fifth day of each month on the form provided for that purpose. The affidavit alleged that appellant had not submitted any reports since being placed on probation on November 6, 1991.
At the revocation hearing, a probation officer testified that appellant never reported to the probation office, failed to perform any community service work, and failed to pay restitution and court costs. The probation officer acknowledged that restitution was not an issue, since the victim, American Express Company, sent a notice that no restitution was due. The probation officer stated that although appellant was released from jail on November 6, 1991, he failed to report to any probation office after his release.
Appellant testified that he was never instructed to report to the probation office in Escambia County. Rather, his public defender told him the probation supervision could be transferred to New Orleans, his home town. Appellant acknowledged that he knew he had been placed on probation and that he had a duty to report. He explained that shortly after his release from jail, he was the victim of a shooting. His injuries were serious, resulting in his hospitalization for six weeks. Appellant said he wanted the probation transferred to Louisiana, but he was shot before he had the opportunity to return there. He stated that he required further care after his discharge from the hospital, so his mother cared for him in her home in Alabama. Appellant acknowledged that he did not contact any probation officials in either Louisiana or Florida.
The trial court found appellant guilty of failure to report, the first violation alleged in the affidavit of violation of probation. The court orally revoked probation solely on this ground. The trial court adjudicated appellant guilty, and sentenced him to serve two concurrent thirty-month terms of incarceration in state prison. The written order of revocation of probation reflects that appellant was found guilty of violating Conditions I, II, III, IV, and V of his probation.
A trial court is vested with broad discretion in determining whether a probationer has violated a condition of the probation. Harris v. State, 610 So.2d 36 (Fla. 2d DCA1992). A violation which triggers a revocation of probation must be "willful and substantial." Hewett v. State, 613 So.2d 1305 (Fla.1993); Gibbs v. State, 609 So.2d 76 (Fla. 1st...
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Odom v. State
...was both willful and substantial"). To trigger revocation of probation, a violation must be willful and substantial. Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993). Reasonable efforts to comply with a condition of probation cannot be deemed a willful violation. Van Wagner v. State,......
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Mier v. State
...of probation must be both willful and substantial. See Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1st DCA 1996); Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993). Because it is in a better position to determine whether a violation is willful and substantial, the trial court's deci......
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Meade v. State, 1D01-0168.
...of Appellant's probation. "A violation which triggers a revocation of probation must be `willful and substantial.'" Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993). "Where a probationer makes reasonable efforts to comply with a condition of probation, violation of the condition cann......
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Faison v. State
... ... "willful and substantial." Odom v. State, ... 15 So.3d 672, 675 (Fla. 1st DCA 2009) (citing Burgin v ... State, 623 So.2d 575, 576 (Fla. 1st DCA 1993)). If a ... defendant "makes reasonable efforts to comply with a ... condition ... ...