Watkins v. StateWatkins v. State
Appellant contends that the trial court erred in revoking his probation. We do not agree, and we affirm.
A jury found apрellant guilty of burglary and resisting arrest without violence, and the sentencing court placed appellant on probation for a period of three years. Thereafter appellant was charged with violating three conditiоns of his probation. Following a hearing the trial court entered an order of revocation of probation finding that appellant had violated conditions of
At the hearing on these charges the probation officer read the alleged violations into the record. Counsel for appellant admitted the violations and sought to have appellant explain the circumstances. Appellant testified that he had not paid the fees because he was unemployed and thus unable to obtain the necessary funds. Appellant admitted changing his residence in May but said his landlord instructed him to leave because of delinquent rent. Althоugh the probation officer instructed appellant to report in person during the first week in June, appellant said he was detained in transporting his ill grandmother and did not appear. Appellant did report to the probation оfficer in July and gave his new address at that time.
The trial court found that appellant was able to make the supervisory payments, but we find no evidence in the record to support that conclusion. Appellant rightfully contends that probation cannot be revoked solely for violation of a condition requiring payment without evidence that the рrobationer was able to make the payment. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979); Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978). If there were no other grounds for revocation of probation we would reverse.
Appellant contends that obtaining consent to a change of residence would havе been a useless act because he was virtually evicted from his approved residence for nonpayment of rent. Appellant relies on the decision of our sister court that held eviction by legal process to be а defense to violation of a similar condition. Kotowski v. State, 344 So.2d 602 (Fla. 3d DCA 1977). It may very well be that eviction would constitute a defense to failurе to obtain consent if consent were denied, but appellant neither requested consent to change his residеnce nor notified the probation officer of the alleged eviction. Additionally, the probation officer did nоt know of appellant‘s whereabouts for over a month and then only when the next monthly report was submitted. Under these сircumstances we hold that the trial court‘s finding that appellant violated this condition was proper and supported by the evidence.
Appellant argues that his failure to report in June was only an isolated incident and as such was not a sufficient ground to revoke his probation. We do not agree. The record shows that appellant failеd to report for over a month after his failure to appear in June and consequently was unavailable to the probation officer during that period of time. It is well settled that probation may be revoked upon satisfaction of the conscience of the court. Bernhardt v. State, 288 So.2d 490 (Fla. 1974).
We note that the order by the probation officer to report in Junе was not a court-imposed condition of probation but was made by the probation officer pursuant to the сourt-imposed condition which provides:
You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructiоns he may give you.
This condition of probation is clear and unambiguous, and the probationer‘s compliance with its provisions is required. We are aware of the holding in Barber v. State, 344 So.2d 913 (Fla. 3d DCA 1977), that violation of orders given by the probation officer will not support revocation of probation. We believe that application of this result to the instant case would bе contrary to the intent of probation. See Bernhardt v. State, supra. To deny the probation officer authority over the probationer wоuld not only render
Probation is dependent on legislative and judicial grace. Baker v. State, 319 So.2d 628 (Fla. 1st DCA 1975). The burdens of compliance with conditions are slight in comparison to the alternative imprisonment.
The trial court is directed to strike the finding that appellant violated his probation by failing tо pay the supervisory fee. Appellant need not be present for this purpose. Otherwise the order of revocation of probation, judgment, and sentence is affirmed.
AFFIRMED as modified and REMANDED for the purpose set out in this opinion.
GRIMES, C.J., and RYDER, J., concur.