McCumber v. State, No. 94-04251

CourtCourt of Appeal of Florida (US)
Writing for the CourtRYDER
Citation682 So.2d 1214
Parties21 Fla. L. Weekly D2466 Armando McCUMBER, Appellant, v. STATE of Florida, Appellee.
Decision Date13 November 1996
Docket NumberNo. 94-04251

Page 1214

682 So.2d 1214
21 Fla. L. Weekly D2466
Armando McCUMBER, Appellant,
v.
STATE of Florida, Appellee.
No. 94-04251.
District Court of Appeal of Florida,
Second District.
Nov. 13, 1996.

Page 1215

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...

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6 practice notes
  • Savage v. State, No. 2D12–2269.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2013
    ...Del 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 200......
  • Jackson v. State, No. 2D05-1491.
    • United States
    • Court of Appeal of Florida (US)
    • March 23, 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, No. 98-1883
    • United States
    • Florida District Court of Appeals
    • September 17, 1999
    ...Florida Statutes (1997), section 39.054(1)(f), Florida Statutes (1995), restitution could not be imposed on parents. M.C.L., 682 So.2d at 1214. The first district held, however, that under the predecessor statute at issue restitution can be imposed on the child through a promissory note cos......
  • Fields v. State, No. 97-05298.
    • United States
    • Court of Appeal of Florida (US)
    • June 30, 1999
    ...on 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 c......
  • Request a trial to view additional results
6 cases
  • Savage v. State, No. 2D12–2269.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2013
    ...Del 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 200......
  • Jackson v. State, No. 2D05-1491.
    • United States
    • Court of Appeal of Florida (US)
    • March 23, 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, No. 98-1883
    • United States
    • Florida District Court of Appeals
    • September 17, 1999
    ...Florida Statutes (1997), section 39.054(1)(f), Florida Statutes (1995), restitution could not be imposed on parents. M.C.L., 682 So.2d at 1214. The first district held, however, that under the predecessor statute at issue restitution can be imposed on the child through a promissory note cos......
  • Fields v. State, No. 97-05298.
    • United States
    • Court of Appeal of Florida (US)
    • June 30, 1999
    ...on 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 c......
  • Request a trial to view additional results

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