Stevens v. State, 2D01-3905.
| Decision Date | 16 August 2002 |
| Docket Number | No. 2D01-3905.,2D01-3905. |
| Citation | 823 So.2d 319 |
| Parties | Lisa Debra STEVENS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Katherine Coombs
Cline, Assistant Attorney General, Tampa, for Appellee.
Lisa Stevens challenges the circuit court order revoking her probation and sentencing her to two years' community control. We affirm in part, reverse in part, and remand for further consideration.
On June 13, 2000, Stevens pleaded no contest to grand theft and was sentenced to eighteen months' probation. The order of probation included as conditions of the probation the performance of one hundred hours of public service work in equal monthly installments and the payment of court costs and investigative costs in equal monthly installments. At her initial meeting, the probation officer instructed Stevens that the work hours should be completed at the water treatment plant on Sheldon Road in Tampa. Additionally, the officer instructed Stevens that she should make monthly payments of $81.70 per month to complete her financial obligation.
On February 23, 2001, an affidavit of violation was filed, alleging that Stevens had violated her probation by (1) falsifying the number of community service hours she had performed, (2) failing to complete the necessary number of community service hours in equal monthly installments, and (3) failing to pay costs in equal monthly installments. At the revocation hearing held on July 25, 2001, the trial court found that Stevens had committed all three violations. We affirm that finding only as it applies to Stevens' failure to perform the required community service hours in equal monthly installments.
For a trial court to revoke probation based on a violation of a condition of probation, the violation must be willful and substantial. Hightower v. State, 529 So.2d 726 (Fla. 2d DCA 1988). At a revocation hearing, the State has the burden of establishing the violation by a preponderance of the evidence. Roseboro v. State, 528 So.2d 499 (Fla. 2d DCA 1988); Van Wagner v. State, 677 So.2d 314 (Fla. 1st DCA 1996). The standard of review to be followed by this court in reviewing an order revoking probation is abuse of discretion. Bennett v. State, 684 So.2d 242 (Fla. 2d DCA 1996).
Based on our review of the record, we conclude that the greater weight of the evidence here does not support the trial court's finding that Stevens falsified community service records. Stevens' probation officer testified that she instructed Stevens that she would be required to perform community service hours in equal monthly installments at the Sheldon Road water treatment plant. Stevens was given a log book in which to record her hours and instructed to have her supervisor at the plant initial each entry. However, the officer also informed Stevens that she had the option to complete the hours at a water treatment plant on Linebaugh Avenue so long as Stevens informed her first.
At the time of violation, Stevens' log book contained six entries totaling twenty-four hours of service. Although the probation officer was able to verify four of those hours, she was unable to verify the entries initialed by "B.J." After the affidavit of violation was filed, Stevens informed her probation officer that the other hours were performed at the Linebaugh Avenue plant.1 The record-keeper at the Sheldon Road plant testified that no one working at her plant had the initials B.J. and that she did not know of anyone employed at the Linebaugh location with those initials. However, she did not testify that she in fact knew all the employees at the Linebaugh plant.2 The probation officer testified that she "contacted actually every...
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...1982)); Hanania v. State, 855 So.2d 92, 94 (Fla. 2d DCA 2003) (using term “preponderance” of the evidence) (citing Stevens v. State, 823 So.2d 319, 321 (Fla. 2d DCA 2002)); Hightower v. State, 529 So.2d 726, 727 (Fla. 2d DCA 1988) (citing Molina v. State, 520 So.2d 320 (Fla. 2d DCA 1988)); ......