Sanders v. State, 95-02309

• Decision Date: 14 June 1996
• Docket Number: No. 95-02309,95-02309
• Citation: 675 So.2d 665
• Parties: 21 Fla. L. Weekly D1392 Raymond SANDERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 665

675 So.2d 665

21 Fla. L. Weekly D1392

Raymond SANDERS, Appellant, v.STATE of Florida, Appellee.

No. 95-02309.

District Court of Appeal of Florida Second District.

June 14, 1996.

Roger L. Fishell, Sarasota, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and John Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

THREADGILL, Chief Judge.

The appellant, Raymond Sanders, challenges an order revoking his probation.Because the evidence presented at the revocation hearing was insufficient to prove willful and substantial violations of probation, we reverse.

The appellant pleaded nolo contendere to burglary of a structure and possession of burglary tools.The trial court sentenced him to five years' probation with the special condition that he serve eleven months and twenty-nine days in county jail on each count to run consecutively.The trial court also required him to enter and complete a drug treatment program.Thereafter, the appellant's probation officer filed an affidavit of violation of probation alleging the appellant violated, inter alia: condition (1) which required him to make a monthly report to his probation officer; condition (12) which required him to submit to urinalysis to determine possible use of drugs or controlled substances; and the special condition which required him to enter and complete a drug treatment program.After an evidentiary hearing, the trial court found willful violations of these three conditions and revoked probation, sentencing the appellant to consecutive terms of five years in prison on each count.

To trigger a revocation of probation, a violation must be willful and substantial and its willful and substantial nature must be supported by the greater weight of the evidence.Hightower v. State, 529 So.2d 726(Fla. 2d DCA1988).The evidence presented in this case was insufficient to establish violations of the probation conditions involving drug treatment and urinalysis.

At the evidentiary hearing, the administrator of the Choices Non-secure Treatment Program testified that the appellant was terminated from the aftercare portion of the drug treatment program because he had missed three weekly meetings.The administrator testified that participants were not permitted to have more than three unexcused absences.Similarly, the appellant testified it was his understanding he could miss three meetings, no more.The appellant did not exceed the number of unexcused absences...