Soto v. State, 97-02469.
| Decision Date | 19 February 1999 |
| Docket Number | No. 97-02469.,97-02469. |
| Citation | 727 So.2d 1044 |
| Parties | Enrique SOTO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
Enrique Soto appeals the judgment and sentence entered following the revocation of his probation. Because we conclude that the State did not prove a willful and substantial violation, we reverse and remand with instructions to reinstate Soto's probation.
In 1995, Soto pleaded guilty to attempted sexual battery and lewd act upon a child. The trial court sentenced him to fifteen years in prison, but provided that after Soto served two years, the remaining thirteen years would be suspended and Soto placed on probation. Among the special conditions of probation, Soto was ordered to have no contact with any child less than sixteen years of age until he completed a sex offender program, and thereafter to have no contact with any child under sixteen without another responsible adult present. The court also noted that Soto could transfer his probation to California.
On June 10, 1996, Soto was released from prison, and although he was homeless, he possessed an airline ticket to California that had been purchased by his family. The probation officer attempted to make arrangements for Soto to transfer the probation to California where he was to live with a brother, Moysis Soto. In a telephone conversation, Moysis Soto told the probation officer that there were no children in his home. The probation officer initiated a home investigation by the California authorities, but because the investigation would take some time, he gave Soto a thirty-day travel permit with the understanding that if the California authorities did not approve the probation plan, he would have to return to Florida. Soto left for California on June 19, 1996.
The probation officer called Moysis Soto on June 20, 1996, and learned that Enrique was not living with him. Moysis informed the probation officer that he did have small children in his home, but he had previously lied to help Enrique get the travel permit, and that Enrique knew about the lie. Enrique called the probation officer to inform him that he was living in a trailer because when he arrived at his brother's house, he found his niece's children living there, and he knew he would violate the probation if he stayed with them. On July 9, 1996, the probation officer told Soto that the California authorities had rejected the residential plan and that he would have to return to Florida immediately. On July 23, 1996, Soto asked the probation officer to give him more time because he did not have the funds to return. This request was denied. Soto was charged with violating his probation and extradited from California.
The trial court determined that Soto had violated probation as charged by (1) moving from the approved residence of his brother, without permission, and (2) lying to the probation officer by telling him that no children lived with his brother.
The only evidence that Soto lied about the children consists of the probation officer's testimony. As noted above, he testified that Moysis Soto admitted lying about the children and said that Enrique knew the children lived there. Enrique testified, however, that he did not know until he arrived in California that his...
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Jackson v. State
...telephone contact was not alleged as a violation in the affidavit. It thus could not be a basis for revocation. See Soto v. State, 727 So.2d 1044, 1046 (Fla. 2d DCA 1999); Butler v. State, 450 So.2d 1283, 1285 (Fla. 2d DCA Jackson's counsel permitted Jackson to enter an admission to a viola......
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Faison v. State
... ... 1st ... DCA 1996)). When factors beyond a defendant's control ... cause his non-compliance, the violation is not willful ... Soto" v. State, 727 So.2d 1044, 1046 (Fla. 2d DCA ... 1999) (citing Jacobsen v. State, 536 So.2d 373, 375 ... (Fla. 2d DCA 1988)) ... \xC2" ... ...
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Rodriguez v. State, 5D99-3262.
...that is beyond their control or ability is an illegal condition and its violation is not a violation of probation. Soto v. State, 727 So.2d 1044 (Fla. 2d DCA 1999); Trapp v. State, 711 So.2d 138 (Fla. 4th DCA 1998); Brown v. State, 666 So.2d 240 (Fla. 5th DCA 1996); Armstrong v. State, 620 ......
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Wilcox v. State
...Render v. State, 755 So.2d 653, 654 (Fla. 4th DCA 1998); Hall v. State, 744 So.2d 517, 520-21 (Fla. 3d DCA 1999); Soto v. State, 727 So.2d 1044, 1046 (Fla. 2d DCA 1999). However, probation can be revoked on the basis of hearsay inadmissible at a criminal trial in combination with evidence a......