Wilson v. State, 5D00-1771.

• Decision Date: 12 April 2001
• Docket Number: No. 5D00-1771.,5D00-1771.
• Citation: 781 So.2d 1185
• Parties: La Ronn Marquies WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

781 So.2d 1185

La Ronn Marquies WILSON, Appellant, v. STATE of Florida, Appellee.

No. 5D00-1771.

District Court of Appeal of Florida, Fifth District.

April 12, 2001.

James B. Gibson, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, J.

La Ronn Wilson appeals a judgment in which the trial court found that he had violated his probation. His challenge is based on the ground that his alleged violations of probation were not willful and substantial. We agree and reverse.

The state charged Wilson by information with two counts of sexual battery of K.B., an eleven-year old female, three counts of lewd or lascivious act in the presence of K.B. by perpetrating a sexual act upon E.S., another minor female, one count of aiding and abetting the commission of a sexual battery upon K.B., and one count of forcing or enticing K.B. to commit a lewd, lascivious, or indecent act. Wilson pled no contest to three counts of lewd and lascivious acts in the presence of K.B., and to one count of forcing or enticing the child to commit a lewd and lascivious or indecent act. The state nolle-prossed the remaining charges as to both K.B. and E.S. and Wilson was sentenced in accordance with the plea negotiations.

Wilson was found to be in violation of his probation for failing to report to his probation office at a certain time, and failing to follow the condition of not having any contact with the victim, E.S. Wilson takes the position that his reporting violation was insubstantial, and that he did not violate his probation when he visited with E.S.'s mother because, when the charges involving E.S. were dropped, he was found guilty and sentenced only for crimes against K.B. Thus, the only "victim" was K.B.

The probation officer testified at the hearing that Wilson failed to appear after being instructed to report to his office at 2:30 p.m. In fact, Wilson had reported to the probation office at 1:30 while the probation officer was at lunch. Wilson left a written monthly report stating, "that I moved and here is my new address, if you need anything call me." The probation officer called Wilson at the number which he had left on his written report and left a message for him to report to the office immediately. Wilson returned to the office at 3:50 that afternoon.

After Wilson arrived, the probation officer asked him if he had seen the victim's mother. Wilson responded that he had seen E.S.'s mother for a short time and that she was "a very good friend of his." The probation officer informed Wilson that his contact with the mother could result in a violation of his probation because it was an indirect contact with "the victim."

Wilson testified at the evidentiary hearing that he was mistaken as to the time he was told to report to the probation office. When asked why he did not return immediately, he responded, "Well, when I talked to the lady at the front desk she asked me if he needed to speak to me. When I talked to him over the phone, he didn't specify the need to speak to me so she said just to fill out your monthly report, and if he needed [sic] to see you, we will have him call you." Regarding the contact with E.S.'s mother, Wilson testified that he had been to her home on two or three occasions since he had gotten out of jail. The last time that he had been there was to pick up a jacket that had been left behind. He did not see K.B. when he was there.

There is no evidence that Wilson tried to contact K.B., even through a third person. In its oral findings, the trial court noted...