Johnson v. State

• Decision Date: 18 May 1990
• Docket Number: Nos. 89-01074,89-01147,s. 89-01074
• Citation: 561 So.2d 1254
• Parties: 15 Fla. L. Weekly D1375 Charles Edward JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1254

561 So.2d 1254

15 Fla. L. Weekly D1375

Charles Edward JOHNSON, Appellant, v. STATE of Florida, Appellee.

Nos. 89-01074, 89-01147.

District Court of Appeal of Florida,

Second District.

May 18, 1990.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dell H. Edwards, Asst. Atty. Gen., Tampa, for appellee.

SCHOONOVER, Acting Chief Judge.

The appellant, Charles Edward Johnson, in this consolidated appeal, challenges certain terms and conditions of his probation and a subsequent order revoking that probation. We reverse.

The appellant was charged with robbery with a firearm and aggravated assault with a firearm. The state, as a result of plea negotiations, removed the allegations concerning a firearm from both of the charges, and the appellant pled guilty to the amended charges. The trial court, as part of the negotiations, sentenced the appellant to serve four years in prison on the aggravated assault charge and placed him on five years probation on the robbery charge. A $300 public defender fee was also imposed. The terms and conditions of the probation order required the appellant to stay more than three blocks away from areas of known high drug activity as determined by his probation officer and to make restitution in the amount of $25,000. The trial judge, in open court, announced that appellant's probation would be terminated upon payment of the restitution, but this statement was not placed in the probation order. The appellant filed a timely notice of appeal.

The appellant, as a result of a mistake at the county jail, was not delivered to the state prison to begin serving his sentence, but instead was released from custody. When his probation officer was informed that the appellant was not in custody, she executed an affidavit and obtained a warrant charging the appellant with violating the terms and conditions of his probation by failing to report to the probation office within seventy-two hours of his release from incarceration. At appellant's probation revocation hearing, the state presented evidence that the appellant had been instructed by the court and by the probation officer to report to the probation office after his release from custody. The appellant argued that because of the events that had occurred he was confused about when he was to report. The trial court found that the appellant had violated the terms and condition of his probation, revoked the probation, and sentenced the appellant to serve nine years in prison for the robbery charge. The sentence was to be served consecutively to the four year sentence for the aggravated assault charge and was to be followed by thirty years of probation. The appellant filed a timely notice of appeal from the judgment and sentence.

We agree with the appellant's contention that the trial court erred by revoking his probation. A violation which triggers a revocation of probation must be willful and substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence. Hightower v. State, 529 So.2d 726 (Fla. 2d DCA 1988). The state did not carry its burden of showing that the appellant's violation was willful and substantial. Although the appellant did not report as instructed, his release from custody was not as a result of serving his sentence, but rather because of the mistake of the county jail. A probationer is required to initially report to his probation officer so that, among other things, he can be oriented on the requirements of his probation. The requirement generally contemplates that he has already commenced his...