Shaw v. State, 79-368

• Decision Date: 24 December 1980
• Docket Number: No. 79-368,79-368
• Citation: 391 So.2d 754
• Parties: Eric Tyrone SHAW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 754

391 So.2d 754

Eric Tyrone SHAW, Appellant, v. STATE of Florida, Appellee.

No. 79-368.

District Court of Appeal of Florida, Fifth District.

Dec. 24, 1980.

James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

Following a hearing on charges of violation of probation, appellant was found guilty and his probation was extended. He contends that the evidence was insufficient to support the charges. We agree and reverse.

The charges can be summarized as follows:

(a) failure to submit report due June 5, 1979;

(b) failure to make payments toward cost of supervision or payments toward fee of court appointed attorney;

(c) failure to report a change of address which took place on June 14, 1979, with his present whereabouts unknown to the probation officer.

Only two witnesses testified at the hearing, appellant and his probation supervisor. With respect to the delinquent report due June 5, 1979, the probation supervisor had directed appellant to personally deliver the report to the probation office in Ocoee. Appellant lived in Orlando. It is undisputed that appellant completed the report in time because his probation supervisor saw the completed report on appellant's dresser when he went to look for him about a week later. His testimony that he had no transportation, thus could not deliver the report was also not disputed. To support a revocation of probation, the violation must be willful as well as substantial. Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978). Where a defendant makes reasonable efforts to comply with probation conditions, his failure to do so may not be willful. Gardner v. State, 365 So.2d 1053 (Fla. 4th DCA 1978). As will be seen, slightly more than one week later, the matter of delivery of the report was out of appellant's hands.

Condition (3) of the standard probation order prohibits a change of residence or a move out of the county of a defendant's residence without first procuring the consent of the probation supervisor. On June 13, 1979, appellant was sentenced by the federal court in Orlando to a six-month prison term for an offense committed prior to the crime for which he was placed on probation here. He reported to the Orange County Jail on June 15th and was held there until transferred to a federal prison on June 29, 1979. Since the "change of residence" under these circumstances was involuntary and by virtue of a court order, seeking his probation supervisor's consent would have been a useless act. Kotowski v. State, 344 So.2d 602 (Fla. 3d DCA 1977). The State contends, however, that appellant nevertheless had a duty to advise the supervisor of his whereabouts, citing Watkins v. State, 368 So.2d...