453 So. 2d 222 | Fla. Dist. Ct. App. | 1984
Concurrence in Part
concurring in part; dissenting in part.
I agree there was no evidence that Barbara Orr knew she had to live at an approved address as a condition of her probation. However, I also think there was no evidence that she knew she had to obey all the instructions given her by the probation officer in this case as an additional condition of her probation.
Orr’s defense attorney and the state prosecutor, who were present at the original sentencing before Judge Baker, both agreed at the probation revocation hearing that it was never the intent of the sentencing judge to put her on probation. She was sentenced to fifty-one weeks in the county jail and fifty-one weeks on probation in order to send her directly from jail to an alcoholic rehabilitation residential program as soon as an opening occurred. Her lawyer explained it was his understanding that that her probation would end at the same time she got out of jail or such program. She did reside in a rehabilitative center in DeLand, but testified that she was ordered to leave after an argument.
The probation officer testified he did not even know she was in the DeLand pro
The second trial judge acknowledged that except for the letter belatedly sent by the probation office, Orr was not notified of any conditions of the probation. He also noted she has serious mental and physical health problems. Notwithstanding these facts, the judge revoked her probation and sentenced her to four years in prison. The logic and justice of holding that Orr willfully breached a condition of probation she knew nothing about escapes me. The state must bear some of the blame in this case. I would reverse for failure to establish a willful and substantial breach of any condition of her probation. Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980).
Lead Opinion
Barbara Orr’s probation was revoked based on her failure to reside at an approved address and her failure to comply with written instructions to attend a meeting at the probation office. There was no evidence presented that Orr was made aware of the requirement that she’ live at an approved address. Orr testified that she had no knowledge of the condition, or even that she was on probation. The probation officer admitted that as far as he knew no one informed her of the requirement. Under these circumstances, a revocation on this basis is improper. Morgan v. State, 341 So.2d 201 (Fla. 2d DCA 1976). See also Hiers v. State, 440 So.2d 71 (Fla. 5th DCA 1983).
Orr was made aware, however, by written notice, of the requirement that she report to the probation office. She acknowledged at the revocation hearing that she received this notice and ignored it. She testified that she did not know she was on probation. But she was present in court to hear the recitations in the order originally placing her on probation for one year. Subsequently, that order was modified to change the condition that she serve fifty-one months in the county jail and providing her the opportunity to complete her incarceration in a residential treatment center in DeLand, Florida. She left the treatment center and went home to Apopka prior to expiration of the probationary period. Therefore, there was evidence that Orr’s disregard of the probation notice constituted a deliberate violation, for which the trial court could justify revocation. See Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980).
We are unable to determine whether the trial judge would have revoked the probation and imposed the sentence he did based solely on Orr’s disregard of the order to appear. Therefore, we reverse the order of revocation and remand the cause to permit the court to consider whether that violation alone warrants revocation. See Jackson v. State, 449 So.2d 309 (Fla. 5th DCA 1984); Holterhaus v. State, 417 So.2d 291 (Fla. 2d DCA 1982); Watts v. State, 410 So.2d 600 (Fla. 1st DCA 1982).
REVERSED and REMANDED.
