Williams v. State, No. 85-221

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No. 85-221 | Fla. Dist. Ct. App. | Sep 5, 1985

Concurrence Opinion

LETTS, Judge,

specially concurring.

I specially concur because I do not believe the majority opinion stresses that the trial judge, upon remand, may come to the same conclusion as he did before.

I am also apprehensive that it appear we are suggesting that monthly reports are but “technical” niceties. True, they involve some paper work compliance by the *273supervisor and certainly, a failure to report does not rise to the level of an armed robbery. Nonetheless, by definition, probation envisions supervision and control by the department of corrections. Among other normal requirements of this supervision and control, is the duty to report to the probation supervisor [see section 948.-08(l)(a), Florida Statutes (1983) ]. Without such reporting, coupled with the monster case load endured by probation officers, there will be, as a practical consequence, no control and no supervision — ergo nonexistent probation.

Accordingly, I view failure to report as a serious violation of probation regardless of any technicalities involved in the manner of its fulfillment.

Lead Opinion

PER CURIAM.

We reverse the order revoking probation and remand this matter to the trial court for reconsideration because we find that only one ground for revocation is sustainable on appeal, that of failure to file monthly reports. The violations added after the term of probation had ended cannot be prosecuted. Clark v. State, 402 So. 2d 43" court="Fla. Dist. Ct. App." date_filed="1981-08-05" href="https://app.midpage.ai/document/clark-v-state-1715202?utm_source=webapp" opinion_id="1715202">402 So.2d 43 (Fla. 4th DCA 1981). The violations concerning defaults in payment of costs fail because of lack of proof of ability to pay.

While the failure to file monthly reports may be a proper basis, of itself, to revoke probation, such a violation is a technical one and, depending on the circumstances surrounding such violation, may cause a trial court to decide that probation should be revoked and incarceration or some other alternative besides probation utilized. See Davis v. State, 474 So. 2d 1246" court="Fla. Dist. Ct. App." date_filed="1985-09-04" href="https://app.midpage.ai/document/davis-v-state-1900439?utm_source=webapp" opinion_id="1900439">474 So.2d 1246 (Fla. 4th DCA 1985).

DOWNEY and ANSTEAD, JJ., concur. LETTS, J., specially concurs with opinion.