Singleton v. State, 2D04-943.

• Decision Date: 04 February 2005
• Docket Number: No. 2D04-943.,2D04-943.
• Parties: Tremaine Mayo SINGLETON a/k/a Mayo Tremaine Singleton, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

891 So.2d 1226

Tremaine Mayo SINGLETON a/k/a Mayo Tremaine Singleton, Appellant, v. STATE of Florida, Appellee.

No. 2D04-943.

District Court of Appeal of Florida, Second District.

February 4, 2005.

James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Amanda Lea Colon, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Tremaine Mayo Singleton appeals an order revoking probation and sentencing him to twenty-four months' imprisonment. Because the State failed to introduce evidence that four out of Singleton's five violations were willful and substantial, we reverse.

On April 19, 2002, Singleton entered a negotiated guilty plea to possession of a controlled substance and obstructing or opposing an officer without violence in exchange for a twelve-month drug offender probation sentence. Singleton violated his probation twice, once in September 2002 and again in March 2003. In March 2003, the court sentenced him to a twenty-four-month suspended prison sentence and twenty-four months' drug offender probation. In 2004, the court again found Singleton in violation of probation. After a hearing, the trial court found that Singleton violated five different conditions of his probation and sentenced him to twenty-four months' imprisonment.

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. Sanders v. State, 675 So.2d 665, 665-66 (Fla. 2d DCA 1996). Here, the trial court's finding that Singleton willfully and substantially violated probationary conditions 3, 8, 17, and 29 was not supported by the evidence. There was evidence of a technical violation of condition 14.

Condition 3 required Singleton to "not change [his] residence or leave the county or state of [his] residence without first procuring the consent of [his] supervising officer." Singleton's probation officer, Jessica Melendez, filed an affidavit of violation of probation in which she alleged that Singleton violated condition 3 because his whereabouts were unknown as of July 14, 2003, and he was considered an absconder. The only evidence in support of this allegation was Melendez's testimony that she went to Singleton's residence at 6:23 p.m. on May 28, 2003, and he was not at home. She left a message for him, but he did not return her phone call. Melendez took no other action, such as speaking with a landlord, a neighbor, the utility company, or the post office, to confirm her suspicion that Singleton had absconded. See, e.g., Gammon v. State, 778 So.2d 390 (Fla. 2d DCA 2001)

(finding a willful and substantial violation when probationer's landlord told a probation officer that the probationer had moved from his approved residence). Singleton testified that he had not changed his residence; he was still living in the residence on file with the Department of Corrections. Additionally, Singleton did not have a curfew and was not under community control. The State's evidence that Singleton was not at home in the evening on one day and did not return one phone message does not support the trial court's finding that he willfully and substantially violated condition 3.

Condition 8 required Singleton to maintain and work diligently at a lawful occupation to the best of his ability. The State's only evidence on this violation was from Melendez, who testified that Singleton never showed her any proof of employment or pay stubs before July 18, 2003, when she went on maternity leave. Singleton testified that he had been looking for a job, asked his evaluator at the Center for Rational Living to help him find a job, and eventually found a job in September 2003 at Sun Trust. He worked for Sun Trust for two months, at which point he had to be hospitalized apparently because someone shot him. Singleton testified that since his release from the hospital, he had been looking for a job but was unable to find one by the time the affidavit of violation was filed on December 29, 2003. At the revocation hearing, the State failed to present any evidence that Singleton had not diligently looked for work during his periods of unemployment after he was released from prison. Therefore, the State failed to meet its burden of establishing a willful and substantial violation of condition 8. See Davis v. State, 867 So.2d 608, 610 (Fla. 2d DCA 2004)

(finding no willful and substantial violation of probation when a defendant testified that he was employed at restaurants and sought work during periods of unemployment).

Condition 14 required Singleton to undergo two random urine screens per month. Melendez testified that Singleton failed to report for the month of June to undergo two random urine screens. The State did not present evidence on condition 14 for...