Jacobsen v. State, 88-514
| Decision Date | 30 December 1988 |
| Docket Number | No. 88-514,88-514 |
| Citation | 14 Fla. L. Weekly 92,536 So.2d 373 |
| Parties | 14 Fla. L. Weekly 92 Steven D. JACOBSEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Kevin Briggs, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
Jacobsen appeals the trial court's order revoking his probation and imposing a sentence that is a departure upward from the sentencing guidelines. We address only the revocation of probation since that issue alone requires reversal.
Jacobsen originally pleaded no contest to two charges of burglary of a dwelling. After receiving probation on both charges, a violation of probation resulted in a prison sentence on count I, which was completed, followed by a ten-year term of probation on count II. This appeal stems from Jacobsen's violation of his probation under count II.
On November 5, 1987, Jacobsen pleaded no contest 1 to violating his probation, at which time he was reinstated to a ten-year term of probation. One of the terms of probation was that Jacobsen leave and remain out of Lee County. The trial judge informed Jacobsen that he was to contact the probation office in Orlando no later than November 13, 1987. The record contains no written order of revocation of Jacobsen's probation or a written probation order reinstating Jacobsen's probation. At the close of the revocation hearing, the following transpired:
Defendant: I could leave today. I'll just hitchhike out of town.
Court: No, you won't leave today. You're leaving tomorrow morning. Thank you. Good bye.
Another affidavit for violation of probation was filed November 12, 1987, and alleged:
Violation of the Special Condition of his Probation which ordered that he leave Lee County by Noon on November 6, 1987, as is evidenced by his failure to leave Lee County by that date and time.
After a hearing on this violation, Jacobsen's probation was revoked, and he was sentenced to ten years imprisonment. Jacobsen testified to the following events at the hearing.
Jacobsen was released from jail at 9:10 a.m. on the day following the hearing. After cashing a check for $400, he proceeded to the Trailways bus station where he observed a sign that stated the only bus to Orlando left at 8:15 a.m. Jacobsen asked a ticket agent whether the bus was the only one to Orlando, and the agent responded affirmatively. Jacobsen purchased a ticket for the 8:15 bus leaving the following morning. Jacobsen intended to get a hotel room for the evening. For most of the day, Jacobsen stayed at the bus station. At approximately 4:30 p.m., Jacobsen met a friend at the station who asked if Jacobsen would come to another friend's house in Cape Coral. Jacobsen went to the house with the friend and later to a restaurant. According to Jacobsen, the last event he remembered that evening was leaving the restaurant. The next memory Jacobsen had was awakening the following morning with his hands and legs bound together. Jacobsen had been stripped of his money, wallet, and identification and had suffered head injuries. Jacobsen was then taken to the hospital and placed in intensive care. He remained in the hospital for the next nine days.
Carroll Lister, a ticket agent at the Trailways bus station, testified that a sign in the bus terminal listed a direct bus to Orlando leaving at 8:15 a.m. Other departures for Orlando were not posted on the sign because they were not direct trips. Lister identified Jacobsen as having been at the bus station. Lister also testified that ticket sales are not registered by name; therefore, it could not be verified whether Jacobsen purchased a ticket. According to Lister, if asked, he would inform a customer that Greyhound also had buses traveling to given destinations if Trailways did not have a bus leaving at the appropriate time. Lister was aware that Greyhound had two buses leaving for Orlando before noon.
Sue Wilson, the probation officer, testified that she discussed with Jacobsen his failure to leave Lee County. Jacobsen informed Wilson that he had purchased a bus ticket...
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...to attend classes for sex offenders precluded finding of willful violation of probationary term requiring attendance); Jacobsen v. State, 536 So.2d 373 (Fla. 2d DCA 1988) (defendant's failure to leave county by a specified time not grounds for revocation when he made reasonable efforts to c......
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