Scott v. State, 1D17-4089

• Decision Date: 10 August 2018
• Docket Number: No. 1D17-4089,1D17-4089
• Citation: 253 So.3d 125
• Parties: Alfred James SCOTT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

253 So.3d 125

Alfred James SCOTT, Appellant,
v.
STATE of Florida, Appellee.

No. 1D17-4089

District Court of Appeal of Florida, First District.

August 10, 2018

Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Alfred James Scott appeals the trial court's order modifying his probation. Because the State failed to prove that Scott willfully violated a substantial condition of his probation, we reverse.

Scott entered an open plea of guilty to one count of selling marijuana. Since he had no prior record, the trial court withheld adjudication of guilt and imposed twenty-one months' probation and a ninety-day jail sentence, which the court suspended based on Scott's assurances that he had secured a job at Home Depot. A few months later, the State filed an affidavit alleging Scott violated probation by failing to obtain employment with Home Depot. It was undisputed that Scott had obtained employment—in fact, he had two jobs totaling sixty hours per week—but he did not get the job at Home Depot. As a result, the court concluded that Scott willfully and substantially violated his probation, and it modified his probation to impose the jail time.

Scott argues the trial court erred in finding a willful and substantial violation of probation based on a condition not imposed by the trial court. We agree. The transcript of the original sentencing hearing reflects a discussion regarding employment at Home Depot, but the actual condition of probation imposed by the court was that Scott obtain a full-time job or show good faith efforts to do so. Specifically, the court explained,

And if he doesn't get a job [at Home Depot], in addition to the 90 days – well, the condition of probation is he gets a job, full-time job, or show at least five applications per week until he gets a job.

The written probation order is consistent with the court's oral pronouncement. Indeed, the State concedes that the court did not impose employment at Home Depot as a condition of probation, instead arguing it was a "separate agreement" that governed Scott's suspended sentence. However, the "language used in a condition of probation is determinative of a probationer's duties and responsibilities while on probation." Odom v. State , 15 So.3d 672, 677 (Fla. 1st DCA 2009) (quoting Stanley v. State , 922 So.2d 411, 414 (Fla. 5th DCA 2006) ). Because the State's evidence did not show that Scott failed to obtain a full-time job, the court erred in finding a willful and substantial violation of probation.

REVERSED and REMANDED .

Rowe and Ray, JJ., concur; Makar, J., concurring in result with opinion.

Thirty-two-year-old Alfred James Scott, who had no prior criminal record, pled

253 So.3d 127

guilty to one count of selling marijuana. At the sentencing hearing, the trial judge imposed a ninety-day suspended sentence with twenty-one months of probation thereafter. The suspended sentence was conditioned on Scott getting a job at Home Depot, which Scott said he had lined up. In his oral pronouncement, however, the trial judge was unclear as to whether this condition applied to the suspended sentence or, more generally, was a condition of probation, saying "well, the condition of probation is he gets a job, full-time job, or show at least five applications per week until he gets a job." Confusion resulted in an "Order on Probation," signed by the trial judge, stating verbatim what he had required as to full-time work and job applications without mention of the Home Depot job.

Two months later, the Department filed a violation report, stating as grounds that Scott did not get the job at Home Depot. At the revocation hearing, Scott's probation officer testified that "[h]e's been complying with everything I asked him to do." She confirmed that he obtained full-time employment, but that "[h]e did not get the Home Depot job." She explained that she "got a letter stating why he didn't get it, I'm assuming because of his background he didn't get the job. He was offered the job but as his background came they didn't—they rescinded the offer." Scott testified, confirming that he'd received an offer of employment, but that it was revoked when Home Depot learned he was on probation. He then sought other employment and was hired full-time at Michael's (40+ hours weekly) and part-time at McDonald's (20 hours weekly). He reapplied to Home Depot as well.

On this record, Scott's counsel argued that no willful violation occurred: Scott had received an offer from Home Depot, which was withdrawn due to his probationary status, a matter over which Scott had no control, and...