Oates v. State, 2D03-1624.

• Decision Date: 21 April 2004
• Docket Number: No. 2D03-1624.,2D03-1624.
• Citation: 872 So.2d 351
• Parties: Earl Cornelius OATES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

872 So.2d 351

Earl Cornelius OATES, Appellant, v. STATE of Florida, Appellee.

No. 2D03-1624.

District Court of Appeal of Florida, Second District.

April 21, 2004.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Earl Cornelius Oates appeals the trial court's order revoking his probation for aggravated assault and imposing a sentence of 58.5 months' imprisonment. The trial court found that Oates willfully and substantially violated four conditions of his probation. We conclude that the State proved only two of the four violations found by the trial court. Because we are unable to conclude that the trial court would have revoked Oates' probation on account of the two violations actually proven, we reverse the order revoking probation and remand this case to the trial court for further proceedings.

In order to support the revocation of probation, the State must prove that the defendant's violations were willful and substantial. Hanania v. State, 855 So.2d 92, 94 (Fla. 2d DCA 2003). The trial court must determine whether the violations were willful and substantial and supported by the greater weight of the evidence or, stated differently, whether the defendant made reasonable efforts to comply with the terms and conditions of probation. See State v. Carter, 835 So.2d 259, 261 (Fla.2002); Davis v. State, 867 So.2d 608, 610 (Fla. 2d DCA 2004). The trial court has broad discretion to determine whether there has been a willful and substantial violation, and our review of the trial court's determination is for abuse of discretion. Hanania, 855 So.2d at 94.

With commendable candor, the State concedes that it failed to prove willful and substantial violations of conditions 2 and 30. We agree. Condition 2 required Oates to pay $40 per month as the cost of supervision. However, there was no evidence that Oates was able to pay this cost. See Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994). Condition 30 required Oates to complete domestic violence treatment. However, the State's inability to prove a willful and substantial violation of this condition was due in large part to the omission in condition 30 of a specified date by which Oates was required to complete the task and the fact that Oates was not at the end of his probationary period. See Lynom v. State, 816 So.2d 1218, 1220 (Fla. 2d DCA 2002); Haynes v. State, 571 So.2d 1380, 1381 (Fla. 2d DCA 1990). As this court has recently observed, "the better practice is for the sentencing court to specify all performance conditions." Davis v. State, 862 So.2d 931, 935 (Fla. 2d DCA 2004) (Casanueva, J., concurring).

Condition 1 stated: "Each month you will make a full and truthful report to your officer on the form provided for that purpose as instructed by your officer." In addition to the failure to file reports, the State alleged and submitted evidence of extraneous matters to establish a violation of this condition. For purposes of our review, we disregard these extraneous matters as beyond the scope of this condition. Thus the allegation of a violation of condition 1 contained in the affidavit for violation of probation must be limited to the following: "[A]s of 10/18/02, [Oates'] written monthly reports for the months of August 2002, and September 2002, due in September 2002, and October 2002, respectively, have not been received by probation officer James Steere."

Competent evidence established that Oates left the reports at the Corrections office on October 23, 2002. Oates admits that both reports were "submitted late," but he argues that the affidavit did not allege this misconduct. Nevertheless, the State proved the literal language of the affidavit that the reports were not received as of October 18, 2002. This was a violation of condition 1.

We have previously held that the failure to file monthly reports is a sufficient basis to revoke probation. Robinson v. State, 773 So.2d 566, 567-68 (Fla. 2d DCA 2000). Indeed, the failure to file even a single monthly report may, in certain circumstances, justify probation revocation if such failure is willful and substantial and supported by the greater weight of the evidence. Carter, 835 So.2d at 261. The reason is that "probation reports are not merely technical niceties and the failure to report is a serious violation of the privilege of probation." Id.

Nevertheless, the trial court must consider the facts of each case with care in determining whether a violation of probation based upon a failure to file reports is willful and substantial. Id. In this case, the facts established that Oates violated condition 1 by failing to timely...