Carter v. State, 94-1987

• Decision Date: 16 August 1995
• Docket Number: No. 94-1987,94-1987
• Citation: 659 So.2d 453
• Parties: 20 Fla. L. Weekly D1841 James CARTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 453

659 So.2d 453

20 Fla. L. Weekly D1841

James CARTER, Appellant, v. STATE of Florida, Appellee.

No. 94-1987.

District Court of Appeal of Florida Fourth District.

Aug. 16, 1995.

Richard L. Jorandby, Public Defender, and Ian Seldin, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Melynda L. Melear, Asst. Atty. Gen., West Palm Beach, for appellee.

PARIENTE, Judge.

Defendant appeals from an order revoking his probation. The facts, as presented by the state, do not support a finding that defendant willfully and substantially violated his probation by moving from his approved residence in Alabama without the permission of his Florida probation officer. Since this was the only allegation upon which the affidavit of violation was based, we are compelled to reverse. However, this reversal is without prejudice to the state's refiling of an affidavit of violation on different grounds.

Defendant's probation began in Florida, but his Florida probation officer, Michael Gainer, gave him permission to move to Alabama to live with his brother. Although defendant was told to report for probation in Alabama, the paperwork transferring his probation to Alabama had not been completed at the time of the move and Alabama had not officially accepted defendant as a probationer under the interstate parole and probation compact. See Sec. 949.07, Fla.Stat. (1993). The state asserts that defendant's probation officer continued to have both the authority and responsibility to supervise him in Alabama.

It is not entirely clear under the unique facts of this case whether, during the time defendant was in Alabama, he was under the supervision of Alabama or remained under the supervision of the Florida Department of Corrections as a practical, as well as a legal matter. In fact, there appears to have been confusion between the two jurisdictions as to which had responsibility for defendant's supervision. This confusion is reflected in the testimony of Mr. Gainer who testified that defendant was violated because he did not inform Alabama that he was returning to Florida. In fact, defendant did inform the Alabama probation officer of his move and also attempted to contact Mr. Gainer before making the move.

Subsequent to returning to Florida, defendant succeeded in contacting Mr. Gainer and advised of his return. Mr. Gainer testified that he then "checked with my supervisor as to the procedure being Alabama hadn't...