Williams v. State, No. 4D03-4512

• Decision Date: 09 February 2005
• Docket Number: No. 4D03-4513., No. 4D03-4512
• Citation: 896 So.2d 805
• Parties: Jerry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

896 So.2d 805

Jerry WILLIAMS, Appellant, v. STATE of Florida, Appellee.

Nos. 4D03-4512, 4D03-4513.

District Court of Appeal of Florida, Fourth District.

February 9, 2005.

Rehearing Denied March 29, 2005.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

In these consolidated appeals, appellant seeks review of the trial court's order revoking his probation and imposing concurrent sentences of 24.07 months imprisonment. Appellant contends that the trial court erred in revoking his probation because the state failed to present sufficient evidence to demonstrate his probation violations were willful and substantial. We agree and reverse.

The charges contained in the affidavit of violation of probation alleged that appellant violated probation in each case by changing his residence without the consent of his probation officer and failing to file his monthly report for May 2003.

Only appellant and his probation supervisor testified at the hearing. The probation supervisor testified that he personally instructed appellant as to the terms of his probation, including the requirement that appellant obtain permission prior to moving, and appellant understood the terms. He also testified that when he visited appellant's home he found the house vacant with no furniture inside and no cars in the driveway. The probation supervisor further testified that he did not learn of appellant's location until about a month later, when appellant came to his office and reported that he was living on the street because his girlfriend kicked him out. According to the probation officer, appellant did not tell him that he had been evicted from his home. Appellant also failed to file a report with his probation officer for the month of May.

Appellant testified that he left his home after he and his girlfriend were evicted for failing to pay rent. He claimed that right after he was evicted he told the "officer of the day" at the probation office that he was homeless.

The reports contained in appellant's probation file were entered into evidence. The report submitted for the month of June stated that appellant had a disagreement with his girlfriend and was looking for a new place. The report submitted for the month of August stated that appellant was going to missions for food.

It is well settled that "[p]robation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation." Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992) (citations omitted). The violation "must be both willful and substantial, and the willful and substantial nature of the violation must be supported by the greater weight of the evidence." Id. (citations omitted). The standard of appellate review "of an order of probation revocation is whether the trial court abused its discretion." Id. (citation omitted).

The evidence before the court clearly showed that appellant failed to file a report for the month of May. However, the evidence showed that appellant continually reported to the probation office. Each...