Haywood v. State

• Decision Date: 21 August 2008
• Docket Number: No. 1D07-3576.,1D07-3576.
• Citation: 987 So.2d 1285
• Parties: Richard Arnezz HAYWOOD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

987 So.2d 1285

Richard Arnezz HAYWOOD, Appellant, v. STATE of Florida, Appellee.

No. 1D07-3576.

District Court of Appeal of Florida, First District.

August 21, 2008.

Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Richard Haywood appeals the trial court's order revoking his probation and sentencing him to five years' imprisonment. Because the state failed to adduce sufficient evidence that appellant willfully and substantially violated his probation on June 22, 2006, as alleged in the charging document, we reverse the order of revocation and vacate the sentence.

On June 27, 2006, the state filed an affidavit of violation alleging that appellant violated conditions one and three of his probation.¹ The affidavit alleged that appellant, who had been residing in Macon, Georgia, violated condition one of his probation by failing to report to the Gainesville probation office by 4:30 p.m. on June 22, 2006, as his probation officer had directed him to do. The affidavit alleged that appellant also violated condition three of his probation by failing to report in Florida (instead of Georgia) by 4:30 p.m. on June 22, 2006, as his probation officer had directed him to do, Georgia having allegedly rejected a request that it supervise appellant.

Because the state failed to present sufficient evidence that appellant willfully failed to report to the Gainesville probation office on June 22, 2006, and presented no evidence that appellant violated condition three of his probation order by changing his residence without first procuring his probation officer's consent, the trial court abused its discretion in revoking appellant's probation. See Smith v. State, 965 So.2d 1252, 1253 (Fla. 1st DCA 2007).

The evidence did show that, in June of 2006, appellant's probation officer told appellant, who had been residing in Macon, that he had to return to Florida because the State of Georgia had rejected a request that appellant be supervised in that state. See § 949.07, Fla. Stat. (2006) (reciting the interstate compact for the supervision of adult offenders). The probation officer instructed appellant to report to the probation office in Gainesville by no later than 4:30 p.m. on June 22, 2006.

During the revocation hearing, appellant testified that he had set out to drive to Gainesville from Macon on June 22, 2006, but was thwarted by a "blow out" en route, which irreparably damaged a tire. Because, appellant testified, he could not afford a new tire, appellant called his probation officer in Gainesville to inform him that, although he had "tried diligently to get back" to Florida, he would be unable to do so because of his car trouble and financial situation. Appellant's probation officer's testimony confirmed that appellant called him on June 22, 2006, to tell him that the car had broken down on I-75 while appellant was on his way to Gainesville; that appellant did not have money to repair the vehicle; and that as soon as he could get more money or another vehicle or a ride, appellant would "definitely report down to the Gainesville office."

In revoking appellant's probation because he had failed to report to the probation office in Gainesville as directed, the court observed:

I have people that tell me they can't get across Gainesville, the town of Gainesville. They don't have transportation in from Hawthorne or wherever else the situation is, but the law expects them to comply with what is the lawful order of probation, and certainly to take your argument to its obvious extension would mean that you would be allowed to go back—the warrant would be dismissed, you would be allowed to go back to Georgia, and that this Court would be powerless to do anything about your not reporting in, and I don't believe that that's a good—good application of the law.

Absent proof by a preponderance of the evidence that a defendant has willfully and substantially violated a condition of his or her probation, however, revocation was improper. See Hodges v. State, 920 So.2d 158, 159 (Fla. 2d DCA 2006).

Contrary to the trial court's suggestion, only a willful failure to report would have justified revocation. See State v. Meeks, 789 So.2d 982, 987 (Fla.2001) (observing that to trigger a revocation of probation, a probationer's violation must be willful and substantial); Blackshear v. State, 838 So.2d 1228, 1229 (Fla. 1st DCA 2003). A probationer who fails to comply with the conditions of his supervision despite reasonable efforts to comply does not violate his probation willfully. See Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1st DCA 1996) ("Where a probationer makes reasonable efforts to comply with a condition of probation, violation of the condition cannot be deemed `willful.'"); Jacobsen v. State, 536 So.2d 373, 375 (Fla. 2d DCA 1988). Because the record demonstrates appellant's good faith effort to comply with...