Rodriguez v. State, 5D99-3262.
| Decision Date | 06 October 2000 |
| Docket Number | No. 5D99-3262.,5D99-3262. |
| Citation | 768 So.2d 1234 |
| Parties | Nanivette RODRIGUEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
Rodriguez appeals the termination of her probation, and her subsequent sentence, after the trial court determined she violated conditions of her probation. Earlier, she had pled guilty to one count of fraudulent use of a credit card,1 and was placed on probation for two years. With only two weeks of the 24 months of probation left, the court revoked her probation, adjudicated her guilty of the earlier crime, and sentenced her to three days in jail and one year on community control. We reverse because we find the evidence insufficient to establish Rodriguez willfully and substantially violated conditions of her probation.
The court found that Rodriguez violated her probation by not keeping two appointments with her probation officer in April and May of 1999. However, the testimony established that Rodriguez was unable to keep her April appointment because of car problems, which left her without transportation. She called her probation officer to change her appointment to May, and the probation officer agreed to the change. Rodriguez missed her May appointment because she had a job interview and she testified she called the probation officer twice to reschedule but was unable to contact her. Failure to keep the first appointment should not serve here as a basis to revoke probation because a valid explanation was given, as well as accepted, for Rodriguez's inability to keep it. See Frazier v. State, 587 So.2d 660 (Fla. 3d DCA 1991)
. A single missed appointment in May, where there was also a valid explanation proffered, is also insufficient to demonstrate willful and substantial noncompliance. See Washington v. State, 667 So.2d 255 (Fla. 1st DCA 1995); Bingham v. State, 655 So.2d 1186 (Fla. 1st DCA 1995); Stevens v. State, 599 So.2d 254 (Fla. 3d DCA 1992).
The court also found that Rodriguez violated the condition of her probation by moving from her approved residence without notifying her probation officer and obtaining permission. The information concerning Rodriguez's alleged move from her apartment in Orange County, to her parents' residence in Osceola County was based solely on hearsay evidence. The probation officer testified she had spoken with one of Rodriguez's roommates who told her Rodriguez had moved, because her parents' phone number appeared on the roommates' caller ID machine when Rodriguez called them. But the probation officer did not go to the apartment to verify whether Rodriguez no longer lived there, and the roommate did not testify. At the hearing, Rodriguez testified she never moved her residence from the Orlando apartment. She did stay with a friend in Orlando on a temporary basis because she was having a dispute with her roommates about her baby staying with them in their one bedroom apartment.
As we have held before, violation of probation cannot be based on hearsay evidence alone.2 Further, the alleged violation was disputed by Rodriguez's own testimony and was the only non-hearsay evidence proffered on this issue. Thus we conclude this violation was not supported by sufficient competent evidence.
The third violation found by the trial court was that Rodriguez had failed to diligently pursue obtaining her GED and she failed to provide written proof she was participating in a special education or training program. The condition of probation actually provided that she do one of the following: be in school full time, get her GED, or participate in a special educational or training program. Rodriguez testified her probation officer told her she had to get her GED, and Rodriguez believed she had no other choice, thereby losing her option of going to school or participating in a special educational or training program.
Further, the testimony at the hearing showed that Rodriguez tried but was unable to obtain her GED. She took classes for four to six months during her first year on probation to prepare for the GED examination. However, she has an attention deficit disorder, and she was unable to keep up with the class. She then studied from a textbook on her own. Prior to taking the GED, an applicant must take...
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Mier v. State
...and substantial noncompliance with a condition of probation.” As support for this statement, the court cited Rodriguez v. State, 768 So.2d 1234, 1235 (Fla. 5th DCA 2000); Butler v. State, 775 So.2d 320, 321 (Fla. 2d DCA 2000); Remich v. State, 696 So.2d 1270, 1271 (Fla. 2d DCA 1997); and St......
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Meade v. State, 1D01-0168.
...excuse and is insufficient to demonstrate willful and substantial noncompliance with a condition of probation. See Rodriguez v. State, 768 So.2d 1234, 1235 (Fla. 5th DCA 2000); see also Butler v. State, 775 So.2d 320, 321 (Fla. 2d DCA 2000) (failure to enroll in educational classes because ......
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Carrington v. State, 2D13–2730.
...on this issue. Consequently, the trial court should not have revoked probation on this basis. See Rodriguez v. State, 768 So.2d 1234, 1235 (Fla. 5th DCA 2000) (holding that where State only presented hearsay testimony that appellant moved without permission and where probation officer did n......
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Palma v. State, 5D01-3599.
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