Cruz v. State , 4D10–5267.
| Decision Date | 18 January 2012 |
| Docket Number | No. 4D10–5267.,4D10–5267. |
| Citation | 81 So.3d 501 |
| Parties | Reggie Lee CRUZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
In this appeal, we reverse the order of the trial court, finding that Reggie Lee Cruz willfully and substantially violated the terms of his probation. Just before Cruz became homeless, he informed his probation officer that he was going to pitch a tent by an I–95 ramp; the officer approved the plans. One night, at 11:25, the officer went to check on Cruz at this location but did not find him. The following day Cruz contacted the officer and explained that he was not at the location because he went to his step-mother's home (about a mile away) for about twenty minutes to use the restroom. The officer went back to the I–95 location a few days later at about 10:00 p.m.; Cruz was there, as required.
Based on the restroom incident, the officer filed an affidavit of violation of probation, alleging that Cruz violated his probation by not being at his residence during curfew. At the violation of probation hearing, the officer acknowledged that when Cruz was previously residing at a different location, he had given him permission to go to a nearby fast food restaurant to eat one night after curfew because Cruz had come home from work late; however, the officer testified that he intended to allow a curfew exception only on this particular night. Cruz testified that he didn't think he was violating his probation based on the officer's previous curfew exemption, which Cruz testified, included permission to use nearby restrooms. The officer further testified that throughout his time on probation (six years), Cruz never violated a condition of probation. Following the hearing, the trial court found that Cruz willfully and substantially violated his probation, sentenced him to 365 days in jail, and extended his probation period by five years. This appeal followed.
“In order to support a revocation of probation, the State has the burden of proving by the greater weight of the evidence that the probationer's violation was both substantial and willful.” Fulton v. State, 871 So.2d 1037 (Fla. 4th DCA 2004) (quoting Anderson v. State, 711 So.2d 106, 108 (Fla. 4th DCA 1998)). However, a finding of a “substantial” violation must be made after “considering all of the terms of probation imposed.” Rathburn v. State, 353 So.2d 902, 903 (Fla. 4th DCA 1977). Absence from the home without permission supports a finding of a willful and substantial violation of community control; however, “whether a probationer should be excused for leaving is a matter within the trial court's discretion.” Lopez v. State, 722 So.2d 936, 937 (Fla. 4th DCA 1998) (internal citation omitted).
In Goley v. State, 584 So.2d 139 (Fla. 5th DCA 1991), after complying with prior instructions from his probation officer, Goley applied for authorization to travel. Id. at 140. The probation officer made written special entries on the travel permit form and orally instructed Goley to report back to her no later than Monday, June 25. Id. (emphasis in original). On June 26, Goley again appeared before the probation officer and inquired about authorization for another trip. Id. When he volunteered nothing about the report due the day prior, the probation officer advised him that he had violated the conditions of his probation by not reporting the previous day. Id. at 141. At the revocation hearing, Goley testified that he understood the oral instruction to be that he was to report the following week but believed that he had until the Friday following the trip, June 29. Id. The trial court found that the oral instruction given to Goley on June 15 was to report no later than June 25, that it was reasonable and appropriate, and that a violation of the conditions of probation had occurred. Id.
On appeal, the Fifth District reversed, holding that the twenty-four-hour delay “cannot be classified by itself as a...
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Judgment and sentence
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