Marzendorfer v. State, 1D06-4528.
| Decision Date | 24 October 2007 |
| Docket Number | No. 1D06-4528.,1D06-4528. |
| Court | Florida District Court of Appeals |
| Parties | Jeffrey Joseph MARZENDORFER, Appellant, v. STATE of Florida, Appellee. |
Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
This case arose from a series of apparent communication breakdowns between appellant Jeffrey J. Marzendorfer and his probation officer. We conclude the State did not produce competent, substantial evidence in the proceedings below to prove Marzendorfer willfully and substantially violated the terms of his probation. Accordingly, we reverse the order adjudicating appellant in violation of his probation.
In December 2005, Marzendorfer pled nolo contendere to aggravated stalking, for which he was sentenced to a suspended term of five years' imprisonment and placed on probation. Among the conditions of probation were the requirements that appellant (1)"make a full and truthful report to the probation officer" each month, (2) "comply with all lawful instructions given to him by the probation officer," and (3) complete "100 hours of Community Service Work at a rate of 5 hours a month." In June 2006, barely six months into the term of probation, the probation officer, by affidavit, alleged Marzendorfer violated the first condition by stating in required monthly reports that he was "president" of "KGM Holdings, Inc.," which he mistakenly believed he had incorporated; he violated the second condition by e-mailing the probation officer after the officer instructed Marzendorfer to call him; and he violated the third condition by failing to perform community service work at the prescribed rate of five hours per month. The trial court found Marzendorfer guilty of violating each of these conditions, and not guilty of a fourth count of failing to make himself available for home inspections, after testimony showed the officer spontaneously presented himself for inspections at appellant's home while appellant was at work. As a result of the violations, the trial court sentenced appellant to five years in prison.
Trial judges necessarily exercise discretion when deciding whether a probationer has violated a condition of probation, warranting return to jail or prison. See State v. Carter, 835 So.2d 259, 262 (Fla.2002) (). This court's analysis on review of a decision to revoke probation considers whether the State both alleged and proved, by competent evidence, that the probationer willfully and substantially violated the terms of probation. See id.; Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996) (). The supreme court in Carter rejected a per se rule that a probationer's trivial or de minimis failure to comply with a particular condition can never constitute a violation of probation. 835 So.2d at 261. In compliance with Carter, we must consider each case on an individual basis, measuring the willfulness and substantiality of an alleged violation of probation with regard to "whether the defendant has made reasonable efforts to comply with the terms and conditions of ... probation." Id.
The State first alleged that Marzendorfer violated probation by misrepresenting his employment status, stating orally to the officer and on written monthly reports that he was "self-employed" as the "president" of "KGM Holdings, Inc.," which he attempted to form, albeit unsuccessfully, by filing articles of incorporation with the Department of State in March 2006. The State essentially contends that the inclusion of the term "Inc." in appellant's monthly reports renders them untruthful, as the entity had apparently not been incorporated as of the dates on which appellant filed the reports. We do not agree, however, that appellant willfully and substantially violated probation by describing his business as a corporation. The trial court set a legally enforceable standard in the probation order itself, requiring appellant's monthly reports to be "full and truthful," rather than "technically and absolutely accurate." Were the latter the standard commonly applied, our jails could be filled with purported noncompliant probationers who, with no thought of violating a probation order, write "Avenue" instead of "Street" for an address, or delete from their names a middle initial on monthly reports. Without evidence of an intent to mislead or to evade supervision, we cannot conclude that mere administrative, technical errors generally warrant the imprisonment of those probationers who are otherwise performing satisfactorily.
We note that appellant's characterization of his employer as his self-created "KGM Holdings, Inc.," was not technically accurate, but we conclude that appellant's truthful representations that he was "self-employed" as the president of his own business entity at the time were substantially correct and sufficient to inform the probation officer of appellant's employment status and earning ability. We cannot conclude, and the State does not argue, that the probation officer's belief about the legal form of Marzendorfer's business entity affected the officer's management of appellant's case. To be clear, however, we do not hold that a probationer's misstatement of the legal name of his or her employer can never support a conviction for violating probation, but rather that, in this particular case, under the analysis prescribed by Carter, the evidence...
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