623 So. 2d 1226 | Fla. Dist. Ct. App. | 1993
Dissenting Opinion
(dissenting in part).
This appeal is brought from an order revoking probation and a judgment imposing a five-year prison sentence.
Alston entered a plea to lewd and lascivious conduct and was placed in a community-control program subject to the same conditions as a probationer. While standing on a street corner talking to acquaintances, he was seen by his probation supervisor and ordered to report to the probation office. Nothing was apparently amiss except that Alston should have been at work at the time. At the probation office he complied with an order to produce a urine sample. The sample allegedly tested positive for cocaine.
The consumption of intoxicants is not prohibited by law; ordinarily it is only in cases of excessive use of intoxicants, in combination with some act which poses a public danger or nuisance, where the law will intervene. There was no evidence that Alston used any substance “to excess”, a phrase which presupposes that there is some permissible level of indulgence.
This case is practically on all fours with Jones v. State, 348 So.2d 942 (Fla. 2d DCA 1977), where it was held, in an opinion by Judge Grimes, that evidence that the probationer had smoked marijuana was insufficient to show a violation of the probation condition that he should not use intoxicants to excess and should not visit places where intoxicants, drugs or dangerous substances are unlawfully used.
Nothing prevents the State from refiling a new charge of a probation violation which makes allegations consistent with the evidence. I cannot subscribe to this rough justice, typical in low-level drug-use cases, which embarrasses the accused in the preparation of a defense.
. The violation alleged in full:
You will not use intoxicants to excess; nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed or used unlawfully.
Lead Opinion
Kenny Alston appeals an order revoking community control. We affirm, as modified.
The trial court revoked defendant’s community control, finding that he violated two community control conditions: 1) using intoxicants to excess and 2) failing to work diligently. As to the first condition, the state presented evidence that defendant tested positive for cocaine use. To demonstrate a violation of the second condition, the community control officer testified that on one occasion he observed defendant standing at a street corner on a day when his log sheet indicated he should have been at work. Defendant testified that he stopped and spoke to acquaintances for a brief time when he was attempting to find his employer on the day the community control officer saw him. Defendant’s employer, a contractor, testified that defendant has been performing satisfactory work for 1 ½ years.
Regarding the first condition, defendant asserts that the positive cocaine test does not prove the type of conduct the “excessive use of intoxicants” condition is intended to proscribe. We disagree. The evidence of defendant’s cocaine use was sufficient to satisfy the conscience of the court that defendant violated the first condition.
As to the second condition, however, the greater weight of the evidence fails to establish that defendant wilfully violated the condition requiring him to work diligently. The evidence that, on one occasion, the community control officer observed him standing at a street corner for a few minutes during work hours does not support a finding that defendant wilfully failed to go to work that day. There was no evidence that defendant’s unsuccessful attempts to locate his employer on that date did not occur. Chatman v. State, 365 So.2d 789, 790 (Fla. 4th DCA 1978) (Schwartz, A. J.) (‘While Chatman’s work record may not have been bee-like, the state, ... did not, as was required, establish that the probationer had willfully and not ‘without fault’ failed to maintain employment.”); cf. Bass v. State, 473 So.2d 1367 (Fla. 1st DCA 1985).
Accordingly, we affirm the order as to the first condition and strike the finding that defendant violated the second condition. Scherer v. State, 366 So.2d 840 (Fla. 2d DCA 1979).
Affirmed, as modified.
NESBITT and BASKIN, JJ., concur.
. Cocaine is considered an intoxicant in probation violation cases. See Hogan v. State, 583 So.2d 426 (Fla. 1st DCA 1991); Harrington v. State, 570 So.2d 1140 (Fla. 4th DCA 1990). The dissent’s reliance on the limited definition of "intoxication” in Black's Law Dictionary 957 (rev. 4th ed. 1968) is misplaced. That definition has been deleted from the latest edition of Black’s Law Dictionary 822 (6th ed. 1990). In any event, this court has not limited its definition of intoxicant use to alcohol ingestion. E.g. Scott, 524 So.2d at 1148 (evidence sufficient to revoke defendant's probation for excessive intoxicant use where officer observed defendant staggering down street inhaling automobile transmission fluid).
