McCumber v. State, 94-04251

Decision Date13 November 1996
Docket NumberNo. 94-04251,94-04251
Citation682 So.2d 1214
Parties21 Fla. L. Weekly D2466 Armando McCUMBER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James Marion Moorman, Public Defender, and Diane Buerger, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Stephen D. Ake, Assistant Attorney General, Tampa, for Appellee.

RYDER, Acting Chief Judge.

We reverse the order of revocation of probation because the evidence does not evince a substantial and willful violation.

Following a plea of no contest and adjudication of guilt for one count of engaging a child in sexual activity in violation of section 794.041, Florida Statutes (1991), Armando McCumber was sentenced to three years' imprisonment followed by ten years' probation. The two probation conditions at issue are:

(19) You will have no contact with any female child under the age of eighteen without an approved adult present. Said contact must be previously approved by your Probation Officer.

(20) During the period of this probation, you are not to initiate or have association with victim (daughter).

In July 1994, Mr. McCumber's probation officer filed an affidavit of violation of probation condition (20), alleging that the probationer admitted to him that he had initiated contact with the victim by speaking to her on the telephone. At the probation revocation hearing, the appellant's daughter testified that it was her mother's idea to place a multi-line telephone call to the appellant on Father's Day and that the appellant knew nothing about the surprise. The appellant testified that he received a telephone call from his estranged wife, but that he did not know that his daughter was on the third line until she spoke. He did not have a telephone, and in order to contact him, his wife first called his neighbor who relayed the message to him to wait for a later call. After speaking with his daughter, he terminated the telephone call even though he did not initiate it. He did not know where his daughter lived and he never made any effort to contact her in any way.

The appellant's probation officer testified that other than this one telephone conversation, he did not believe that the appellant had had any contact with his daughter. The appellant voluntarily told him that he had received a call from his wife and daughter. His testimony does not support the allegation that the appellant initiated the contact.

The judge found that the appellant did not initiate the conversation, but that his continued conversation with his daughter violated his probation in that he had association or contact with her. In effect, this finding shows a violation of a hybrid of conditions (19) and (20).

A violation which triggers a revocation of probation must be willful and substantial. Harris v....

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6 cases
  • Savage v. State
    • United States
    • Florida District Court of Appeals
    • 30 Agosto 2013
    ...Valle v. State, 80 So.3d 999, 1012 (Fla.2011) (citing State v. Carter, 835 So.2d 259, 261 (Fla.2002)); see also McCumber v. State, 682 So.2d 1214, 1215–16 (Fla. 2d DCA 1996) (citing Davidson v. State, 419 So.2d 728 (Fla. 2d DCA 1982)); Hanania v. State, 855 So.2d 92, 94 (Fla. 2d DCA 2003) (......
  • Jackson v. State
    • United States
    • Florida District Court of Appeals
    • 23 Marzo 2007
    ...a technical violation by Jackson of the no-contact condition, it was not a willful and substantial violation. See McCumber v. State, 682 So.2d 1214, 1216 (Fla. 2d DCA 1996); see also Scott v. State, 485 So.2d 40, 41 (Fla. 2d DCA 1986). In any event, the telephone contact was not alleged as ......
  • BM v. State
    • United States
    • Florida District Court of Appeals
    • 17 Septiembre 1999
  • Fields v. State, 97-05298.
    • United States
    • Florida District Court of Appeals
    • 30 Junio 1999
    ...a violation of a condition of probation, the State must prove that the violation was substantial and willful. See McCumber v. State, 682 So.2d 1214, 1216 (Fla. 2d DCA 1996). Furthermore, when the trial court revokes probation based on the defendant's failure to complete a program, this cour......
  • Request a trial to view additional results

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