VIOLATIONS OF PROBATION

By: Senior Judge David A. DemersSixth Judicial Circuit

INTRODUCTORY COMMENTS

I. Purpose of outline.

This outline was prepared for two purposes: (1) to provide a structure for courses dealingwith violation of probation and (2) to provide a ready and useful source for regular use in mostproceedings involving violation

II. Course objectives.

The objectives of this part of the program, which is on violations of probation andcommunity control, are as follows:

1. The participants will have a better understanding of the nature of violation proceeds andthe rules that apply.

2. The participants will be able to more effectively handle all aspects of violationproceedings.

3. The participants will be able to discuss ways to properly address issues which arise inviolation of probation hearings.

III. Comments on use of outline.

An effort has been made to provide authorities that are still good law, but that cannot beguaranteed due to the volume of material. For that reason it is wise to shepardize or key cite anydecisions upon which the user intends to rely and check the latest version of statutes and rules.

The outline is designed to provide in some detail the standards that apply to violations ofprobation. It contains examples of factual situations which have been considered by the courts onthe theory that these examples will aid the participants in future decisions. The material isextensive, but not comprehensive.

Any comments that might improve this material or course are welcomed. Such commentscan be provided by letter or by telephone.

Senior Judge David A. Demers E-mail address: ddemers@jud6.org Cell phone: 727 224-5192

TABLE OF CONTENTS

Controlling Statute and Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Change in sentence with VOP.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Modification of sentence without following VOP procedure. . . . . . . . . . . . . . . . . . . . . . . 1Extension of term of probation without VOP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Invoking jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Period during which violation may be filed and amended and tolling. . . . . . . . . . . . . . . 25

Procedures for violations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42Proceedings: statutory language.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Arrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42First appearance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43Notification letter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44Continued supervision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44Violation admitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45Violation not admitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45Proceedings in place where arrested. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46Pretrial release for sexual offenders and predators. . . . . . . . . . . . . . . . . . . . . . . . 47Pretrial release for certain violent offenders. (Anti-murder act). . . . . . . . . . . . . . 48

Nature of proceeding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53Sufficiency of affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54Rights of defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Right to be present. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60Bail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61Notice and right to public and fair hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62Hearing before a neutral and detached body. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63Competency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79Guilty or nolo plea to charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80Rules of discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81Freedom from unlawful searches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83Right to Confront and Cross-Examine witnesses.. . . . . . . . . . . . . . . . . . . . . . . . . 95The privilege against self-incrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96Miranda rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96The speedy trial rule.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98Right to counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99Fifth amendment right to remain silent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99Double Jeopardy Clause & Related concepts. . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110Rules of evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Hearsay.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131Absence of records.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134Judicial notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134Defendant’s silence, admissions and testimony.. . . . . . . . . . . . . . . . . . . . . . . . . 134Circumstantial evidence rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135Affidavits and other documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Matters not alleged in affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Sufficiency of evidence to justify revocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139Validity of condition/waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Examples concerning waiver and invalid conditions.. . . . . . . . . . . . . . . . . . . . . 148Establishing elements necessary for revocation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

Notice of proscribed behavior. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162Violation of a court imposed condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163Willfully violated the conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

Willfulness: Ability to pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168Statutory language. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Willfulness: conditions unrelated to payment. . . . . . . . . . . . . . . . . . . . . 185A substantial noncompliance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

Reports, procedures and technical requirements. . . . . . . . . . . . . . . . . . . 226Completion of counseling and programs. . . . . . . . . . . . . . . . . . . . . . . . . 237

Principles relating to violations for commission of new crimes. . . . . . . . . . . . . . . . . . . 260Violation based solely on an allegation of an arrest. . . . . . . . . . . . . . . . . . . . . . 260Crime different from the one alleged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262Charges that were dismissed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263Nolle prosses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264Proof based on plea to new charge or confession. . . . . . . . . . . . . . . . . . . . . . . . 264Proof based on other evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265Acquittal of new offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270Proof of drug charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271Proof of other charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

Sufficiency of proof to establish commission of act or omission to act. . . . . . . . . . . . . 286Intoxicants and drugs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286Violation of restrictions regarding travel, movement, and association. . . . . . . . 288Failure to comply with reporting and procedural requirements of

probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298Completion of specific requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303Testing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304Employment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304

Judgment & sentence for violation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306Form and procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306Sentencing options. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312

Revoke probation & impose any sentence that could have originally been imposed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312

Misdemeanors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315Split sentences involving suspended prison time.. . . . . . . . . . . . . . . . . . 317Youthful offenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321Sentencing on financial matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324Habitual offender treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325

Modify, extend, or add probation or community control.. . . . . . . . . . . . . . . . . . 327Continue probation and reimpose conditions or impose new

conditions to original term or to extend term.. . . . . . . . . . . . . . . . . . . . . 328Rule 3.790 & §948.06 contain provisions relating to sentencing. . . . . . . . . . . . 329License suspension.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329Credit for time served. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330

Place where time was served. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331Credit for jail time prior to sentencing or while awaiting

an appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335Credit for time served on original sentence against time

imposed for a violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341Original prison term on one offense and probation

on another.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341Time served originally as a condition of probation. . . . . . . . . . . 344Credit for time served on unrelated charge. . . . . . . . . . . . . . . . . 344

Credit for probation, community control, and jail served prior to revocation against probation and community control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345

Credit for time spent on probation or community control against jail or prison.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358

Entitlement to credit for good time and gain-time.. . . . . . . . . . . . . . . . . 363Statutory language. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363

Enforcement by Contempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364

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I. Controlling Statute and Rule.

A. Fla. Stat. §948.06.

B. Fla. Rules of Criminal Procedure, Rule 3.790.

II. Change in sentence with VOP.

A. Modification of sentence without following VOP procedure.

1. The defendant admitted violating probation and the trial judge sentenced himto continue on probation. The court told the defendant before sentencing himthat if his drug test was positive the net day he would give him 15 years inprison. The defendant still wanted to admit the violation. Later on the caseswere recalled and the defense attorney asked the court to give him 30 days toget clean because he might not be able to past the drug tests. The judgerefused and changed the sentence to 34.5 months prison. On appeal thecourse reversed. “Freeman’s sentencing for violation of his probation wascomplete when the trial court continued him on probation and theproceedings concluded. At that point, jeopardy attached, and Freemancould not legally be sentenced again to harsher sentences. (Citationomitted) The fact that apparently a relatively brief period of time mayhave passed before the cases were recalled does not affect the attachmentof jeopardy, (citation omitted) and neither does the fact that Freemanadmitted that he might test positive the next day.” Freeman v. State, 980So.2d 629 (Fla. 2d DCA 2008).

2. The Freeman decision was distinguished where (1) defendant was arrestedfor a VOP and admitted it; (2) the court “‘reinstated’” his probation,modifying several conditions; (3) defendant was implicated in other crimesthat were not brought up; (4) after reinstatement of probation, deputiesarrested the defendant for crimes committed a couple of months before thereinstatement; (5) a new affidavit of VOP was then filed and subsequentlyamended to allege VOPs based on those crimes; (6) the trial judge dismissedthe affidavit because the charged violations happened before reinstatement.The court reversed because it was clear that despite the use of the word“reinstatement,” this was actually a continuation of the earlier term ofprobation when the new crimes were committed. “The distinguishingfeature of Freeman from Mr. Daniels’ case is that the circuit court inFreeman, upon Mr. Freeman’s anticipatory admission of VOP, revoked hisprobation and ordered a harsher sentence without having before it a newsworn affidavit or proof of VOP. In Mr. Daniels’ case, he neveranticipatorily admitted the new VOP charges, and the State had filed a new

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sworn affidavit of VOP that was before the court. The court in Freemanadded an uncharged VOP onto a previously filed, admitted, and disposed ofVOP charge. See also Gearhart v. State, 885 So.2d 415, 416 (Fla. 5th DCA2004) (stating that a court ‘may enhance or extend probation during theprobationary period following a hearing and upon proof of a violation.However, in the absence of a noticed hearing and such proof, anextension of the probationary term violates the double jeopardyprohibition against multiple punishments for the same offense.’). Incontrast, in Mr. Daniels’ case, an entirely new violation of probationproceeding was commenced in the proper way-with a new sworn affidavit ofVOP during a probationary period that was still ongoing, a probationary termthat had never been completed, revoked, or terminated in any way.” State v.Daniels, 33 So. 3d 749 (Fla. 2d DCA 2010).

3. The trial judge failed to impose standard conditions of probation until yearsafter the original sentence. The court subsequently revoked defendant’sprobation for violating one of the conditions. On appeal, the court reversed.“Florida Rule of Criminal Procedure 3.800(c) (1999) authorizes a court tomodify a legally imposed sentence within sixty days of its imposition. Here,the modification occurred years after the sixty-day time period formodification had expired. In Kiriazes v. State, 798 So.2d 789, 794 (Fla. 5thDCA 2001), the court concluded: ‘The trial court’s initial failure to imposethe standard conditions of probation mandated by section 948.03(5)resulted in an incomplete, but not illegal, sentence. The oversight isuncorrectable. More than sixty days had passed since the originalsentence was imposed and, thus, under rule 3.800(c), the trial court hadno jurisdiction to correct the error.’ Accordingly, we reverse the orderrevoking Mr. Poplar’s probation for violating condition 21 and direct that hebe reinstated to supervision.” Poplar v. State, 842 So.2d 902 (Fla. 2d DCA2003). See also State v. Woodard, 866 So.2d 120 (Fla. 4th DCA 2004)(amotion filed pursuant to Rule 3.800(c), must be heard within 60 days after theimposition of sentence, and that is solely the movant’s responsibility)(Therule was subsequently changed to allow the motion to ruled on “90 daysfrom the date the motion is filed or such time as agreed by the parties oras extended by the trial court to enter an order ruling on the motion.”)

4. Within 60 days of imposition of the modification, it was proper for thecourt to impose mandatory electronic monitoring as a condition ofprobation when probation was modified as a result of a charged violation,where the defendant was a sexual offender who was on probation for a felonydriving charge. The double jeopardy clause did not bar imposition of thecondition. Fields v. State, 968 So.2d 1032 (Fla. 5th DCA 2007). See alsoHarroll v. State, 960 So.2d 797 (Fla. 3d DCA 2007).

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5. “The defendant challenged the modification of probation requiring that hewear an electronic monitoring device as an additional condition of hisprobation.... After the “sentencing hearing the probation officer suggested tothe trial court that it may have erred in failing to require electronic monitoringas a condition of Appellant’s probation because Appellant had a previousconviction for lewd or lascivious exhibition under section 800.04(7)(c),Florida Statutes. Subsequently, the trial court entered an order modifyingAppellant’s sentence to include electronic monitoring as an additionalcondition of probation. Because probation is considered a sentence inFlorida, an enhancement or extension of the conditions of probationafter the conclusion of the sentencing hearing generally constitutes aviolation of the double jeopardy prohibitions of the United States andFlorida constitutions. See Lippman v. State, 633 So.2d 1061, 1064(Fla.1994); Justice v. State, 674 So.2d 123, 126 (Fla.1996). Section 948.06sets forth the proper procedure for enhancing the conditions ofprobation. Under section 948.06, probation may not be enhanced untilthe probationer has been formally charged with a violation of probation,brought before the court, and advised of the charge. Lippman, 633 So.2dat 1064; Eddie v. State, 933 So.2d 570, 571 (Fla. 1st DCA 2006).Additionally, the double jeopardy protection prohibits enhancement ofprobation conditions without proof of a violation of probation. Lippman,633 So.2d at 1064. However, in Harroll v. State, 960 So.2d 797, 798 (Fla. 3dDCA 2007), the Third District recognized that a trial court may modifya sentence of probation to include statutorily mandated conditions ofprobation without violating the Double Jeopardy Clause. Specifically,the Harroll court recognized that where section 948.30 requires aprobationer to be electronically monitored, a trial court does not err inmodifying the probationer’s sentence to correct the omission of thisrequired condition of probation. See id. The Harroll court’s holdingrested on the sound premise that a defendant is not placed in doublejeopardy when the trial court simply corrects a legally invalid sentence.See id. (citations omitted).... Appellant’s previous conviction of lewd orlascivious exhibition did not require the trial court to impose electronicmonitoring as a condition of probation under section 948.30(3)(c). Becausethe additional condition was not statutorily mandated, the trial court placedAppellant in double jeopardy when it modified the terms of Appellant'sprobation after the close of the sentencing hearing.” Burkhart v. State, 974So.2d 1203 (Fla. 1st DCA 2008). See also J.D.D. v. State, 12 So.3d 820 (Fla.1st DCA 2009)(“Absent proof of a violation, a trial court cannot alter anorder of probation by revoking or enhancing the terms thereof.” To doso constitutes fundamental error.)

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6. Without proof of a violation of probation, double jeopardy barsrevoking probation or enhancing the term of probation. This case was nota VOP. J.H. v. State, 71 So.3d 202 (Fla. 5th DCA 2011).

7. Two affidavits of violation were filed, but the court found the defendant notguilty on the first one and the state withdrew the second one. Prior to thehearing, the court received a letter from the therapist who was working withthe defendant asking these modifications: (1) extension of probation fromtwo to seven years; (2) completion of the Mentally Disordered Sex Offenderprogram; (3) prohibiting the defendant’s participation in any job or activitywhere he would wear a police-type uniform or use police-type equipment;and (4) restricting the defendant's contact with his immediate family. Thejudge entered the order modifying the defendant’s probation in accord withthe request, except that the judge only restricted the defendants contact withthe minor victim and minor siblings, not with the defendant’s entire family.The defendant was later violated for having contact with one of the siblingsand sent to prison. He filed a motion for postconviction relief. The SupremeCourt held that where no violation of probation has been filed and theprovisions of §948.06 have not been followed, an order modifyingprobation by prohibiting contact between probationer and victim orvictim’s minor siblings constituted an additional punishment proscribedby the double jeopardy clause regardless of the reason for themodification. The Court found that all of the added conditions createdadditional hardships and were more restrictive and thus violated thedouble jeopardy clause. “The double jeopardy protection againstmultiple punishments includes the protection against enhancements orextensions of the conditions of probation.” Lippman v. State, 633 So.2d1061 (Fla. 1994). See also V.M.S. v. State, 43 So.3d 938 (Fla. 4th DCA2010)(condition that offender attend non-public school imposed afterprobation was imposed and without a pending violation, violated the DoubleJeopardy Clause).

8. Where there is no pending violation of probation, the court may rescind ormodify any terms and conditions pursuant to § 948.03(6), but the courtmay not add a new condition or increase the term of probation. Clark v.State, 579 So.2d 109 (Fla. 1991). See also Garcia-Medina v. State, 2013WL 5225351, 38 Fla. L. Weekly D1985 (Fla. 2d DCA Sep 18, 2013)(thecourt increased sentence from 18 months probation to 5 years without recordproof of compliance with §948.06 increase was barred by doublejeopardy; and a subsequent violation was invalid).

9. The defendant was on probation with a special condition that he seek familycounseling. On motion of the state without a violation of probation the

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counseling was changed to anger management. The court also added thecondition that the defendant have no contact with the victim. On appeal, thecourt held that the change of counseling was a valid modification of anexisting condition pursuant to § 948.03 (5). The addition of the conditionprohibiting contact with the victim was an invalid enhancement. Zepedav. State, 658 So.2d 1201 (Fla. 5th DCA 1995).

10. In this case, the defendant was ordered to “undergo a Substance AbuseEvaluation and complete any treatment/education program recommended bythe Evaluator at [her] own expense.” Several years later the probation officerfiled an affidavit of violation alleging a violation of this condition becauseshe refused to get in-patient alcohol treatment as required by her probationofficer. Three days later a hearing was held. The defendant appeared withcounsel. The prosecutor and the defense attorney announced an agreement inwhich the VOP was withdrawn, and she agreed to these three additionalterms: (1) the defendant would go into an alcohol detoxification center andstay there until released by the program authorities; (2) the defendant wouldfollow any treatment recommended by the program; (3) the defendant wouldnot consume any alcohol at any time. The trial judge approved the agreement.Later the defendant was charged with a violation of probation based on twoof the new conditions. She was convicted. At the violation hearing she madeno argument concerning the legality of the new conditions. On appeal, thedefendant argued that the new conditions were illegal because they wereimposed without a finding of a violation of probation. The state argued thatshe waived this point by the failure to object prior to the appeal. On appealthe court considered whether the defendant had waived the right to attack theconditions on direct appeal and whether the new conditions violated theDouble Jeopardy Clause based on Lippman v. State, 633 So.2d 1061 (Fla.1994). The court found that the alleged violation of Double Jeopardy wasfundamental error and could be raised for the first time on appeal. “The test,according to Lippman, as to whether a modification is really anenhancement, turns on whether the change is more restrictive that theoriginal condition.” In this case, the state argued that the new conditionswere mere adjuncts of the original requirement that the defendant undergoa substance abuse evaluation and follow treatment recommendations. “Acondition allowing the PO to require in-patient alcoholism treatmentthrough the entire seven-year term of probation is more restrictive thana requirement that an offender undergo a substance abuse evaluation atthe beginning of probation and follow any treatment then recommendedby the evaluator.” (emphasis by the court). Waldon v. State, 670 So.2d1155 (Fla. 4th DCA 1996).

11. In 1993, the defendant was placed on fifteen years of probation from two

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counts of lewd assault. “The terms of the probation included, inter alia, thatGerber have no contact with children under eighteen unless supervised by anadult having knowledge of the charges, that he not leave the county withoutthe consent of the probation officer, and that he allow the probation officerto visit his home and his employment. The order also provided that theprobation officer not contact employer.” Years later, a new probation officerdemanded restrictions on travel that had never been followed. Thus, thedefendant moved to modify the conditions so that he “could travel freely forboth business and pleasure purposes.... Ultimately the court ordered thatGerber was permitted to continue to work as an independent contractorwithout his clients being told of his case or his status. In addition, thecourt ruled that Gerber may not visit any home or an employer/client forany purpose, business, social, or otherwise, without being accompaniedby his wife or some other adult fully aware of this case and ofDefendant's status as a Registered Sexual Offender.” On appeal, the courtruled that the court’s order violated the prohibition against double jeopardy.“The Florida Supreme Court has unequivocally held that ‘the doublejeopardy protection against multiple punishments includes theprotection against enhancements or extensions of the conditions ofprobation.’ (citation omitted) Before probation may be enhanced, aviolation of probation must be formally charged and the probationermust be brought before the court and advised of the charge. Withoutproof of a violation, the court cannot change an order of probation byenhancing the terms.... ‘The test, according to Lippman, as to whether amodification is really an enhancement, turns on whether the change ismore restrictive than the original condition.’ Waldon v. State, 670 So.2d1155 (Fla. 4th DCA 1996).... As the court plainly held in Lippman, the trialcourt’s decision to couch the order in terms of a modification, rather than asan enhancement, has no bearing on the true nature of the adjustment in theterms of a probation order. The terms of the original probation orderincluded a provision that Gerber have no contact with children undereighteen unless supervised by an adult having knowledge of the chargesand disposition. However, there were no limitations on his ability to visitthe home of employers/clients.... [T]he terms added to the probation areclearly more restrictive than those in the original probation order. As a result,the trial court impermissibly enhanced the terms of Gerber's probation andthat order is hereby reversed.” Gerber v. State, 856 So.2d 1113 (Fla. 4thDCA 2003).

12. The state also argued that the defendant was estopped from arguing the issueof illegality because she agreed that in return for having the violation ofprobation withdrawn the new terms would be added. On appeal, the courtrelied on Clark v. State, 579 So.2d 109 (Fla. 1991). In Clark the defendant

7

signed a “waiver of rights and motion to modify community control” twodays after the sentencing hearing. In Clark, the Court said “‘Absent proof ofa violation, the court cannot change an order of probation or communitycontrol by enhancing the term thereof, even if the defendant has agreedin writing with his probation officer to allow such a modification and haswaived notice and hearing.’” This principle applied to the case at bar eventhough a violation of probation had been filed. “Clearly, the principleholding of Clark is that an offender is not estopped from challenging anenhancement of probation simply because the offender agreed to it. Thecourt must find a violation of an original condition upon due proofbefore probation may be enhanced during its term to add newrequirements. No agreement by the probationer to the enhancementwithout a violation estops an offender from raising the double jeopardyinfringement.” Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996).

13. The defendant was originally sentenced on sex related offenses to probationwith a special condition that he undergo “a mental health evaluation” andfollow any recommended treatment. As a result of the evaluation apsychologist recommended three therapy sessions. For financial reasons thedefendant was sent to another counselor. It was his policy in all such cases torecommend that the offender undergo therapy throughout the term ofprobation. The defendant attended five weekly sessions and then stopped inthe belief that he had complied with that requirement of his probation. Thecounselor advised the probation officer that the defendant needed to continuein counseling. The probation officer advised the court in a letter of thesituation. The trial judge responded by stating that the defendant was requiredto continue in mental health counseling and three sessions would notconstitute compliance. The defendant’s subsequent failure to continuecounseling resulted in the filing of an affidavit of violation alleging aviolation of condition 8, which was that the defendant comply with theinstructions of his probation officer. The trial judge conducted a hearing, butdid not expressly find that the defendant had violated his probation. Insteadthe judge modified the condition of probation by requiring that thedefendant attend weekly meetings with the designated counselor. Thisin effect required that the defendant attend sessions throughout the termof his probation. On appeal, the court reversed. “[U]nder these facts the trialcourt’s response to the probation officer’s letter and, more importantly, itsentry of the order of modification adding Special Condition 16 constitute animproper enhancement, not modification, of appellant’s originalsentence in violation of the double jeopardy clause of the FifthAmendment of the United States Constitution and article I, section 9 ofthe Florida Constitution.... The added condition enhanced appellant’soriginal sentence by imposing an ‘additional hardship’ in the absence of

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a violation of Special Condition 12 [concerning mental healthcounseling].” Delancey v. State, 653 So.2d 1062 (Fla. 4th DCA 1995). Seealso C.H. v. State, 850 So.2d 675 (Fla. 4th DCA 2003).

14. The defendant agreed as a part of a plea bargain that it would be a conditionof his probation that he not have any unsupervised contact with any minor.That condition was not announced on the record nor was it included in thewritten order. Long after the passage of 60 days from the imposition of thesentence the state filed a motion to correct the sentence because the defendantagreed to it and it should have been included. The defendant objected. Onappeal, the court ruled that the sentence was not illegal; therefore, it couldnot be corrected after the passage of 60 days from the imposition of thesentence. Music v. State, 655 So.2d 231 (Fla. 1st DCA 1995); See alsoWilson v. State, 846 So.2d 1201 (Fla. 4th DCA 2003); Jackson v. State,825 So.2d 1021 (Fla. 1st DCA 2002); McLemore v. State, 638 So.2d 610(Fla. 1st DCA 1994) [same ruling concerning the same situation as torestitution agreed to as part of a plea bargain].

15. The 60 day period is not jurisdictional. If the defendant fails to object tothe motion, the time period is waived. Metellus v. State, 817 So.2d 1009(Fla. 5th DCA 2002), affirmed, 900 So.2d 491 (Fla. 2005).

16. Where the defendant was placed on community control, he subsequentlysigned a waiver of rights and motion to modify community control. Thewaiver advised the defendant that he had a right to counsel, and a hearingbefore the court. It was signed out of court. By signing it the defendant agreedto the addition of a condition requiring him to enter and complete a programat a certain institution. The judge signed an order adding that condition. Laterthe defendant was found in violation of that condition and argued that it wasimproperly imposed. On appeal, the Court held that §948.06 provides thesole means for placing additional terms on a previously entered order ofprobation or community control. Before either “may be enhanced, eitherby extension of the period or by addition of terms, a violation ... Must beformally charged and the probationer must be brought before the courtand advised of the charge following the procedures of section 948.06.Absent proof of a violation, the court cannot change an order ofprobation or community control by enhancing the terms thereof, even ifthe defendant has agreed in writing with his probation officer to allowsuch a modification and waived notice and hearing.” The Court did pointout that existing conditions may be modified pursuant to §948.03(7). Clarkv. State, 579 So.2d 109 (Fla. 1991). See also Garcia-Medina v. State, 2013WL 5225351, 38 Fla. L. Weekly D1985 (Fla. 2d DCA Sep 18, 2013)(wherethe court increased sentence from 18 months probation to 5 years without

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compliance with §948.06 increase was barred by double jeopardy; and asubsequent violation was invalid; failure to object until the subsequentviolation did not constitute a waiver); Holcombe v. State, 553 So.2d 1337(Fla. 1st DCA 1989); Ford v. State, 553 So.2d 1340 (Fla. 1st DCA 1989);Dover v. State, 558 So.2d 101 (Fla. 1st DCA 1990).

17. Pursuant to §948.03, the trial judge has jurisdiction during the term ofprobation to modify any condition previously imposed. Thus, prohibitionis not an appropriate remedy to keep the court from increasing restitution.The Court did not address the question of whether such an increase wasotherwise proper; although, it did note that if the amount was part of a pleaagreement and the defendant had made partial payment the trial court mightbe estopped from increasing it. Woods v. Angel, 556 So.2d 820 (Fla. 5thDCA 1990). But see the ruling by this same court in Brenatelli.

18. The trial court failed to originally make it a condition of defendant’sprobation that he have no contact with his wife. The trial court subsequentlyamended the conditions of probation to include a provision limiting contactwith the wife even though there had been no violation. On appeal, thecourt held that the trial judge lacked authority to modify the conditionsof probation. Brenatelli v. State, 555 So.2d 1315 (Fla. 5th DCA 1990).

19. The original order of probation and community control provided that thecourt retained jurisdiction to place the defendant in the probation andrestitution center upon recommendation of the probation officer without aviolation of probation or community control. Five months later the courtordered the defendant to reside at the probation and restitution center. He wassubsequently violated for failing to comply with that condition. The defenseargued unsuccessfully that the condition was improperly added. On appeal,the Court agreed with the defense based on the decisions in Clark v. State,579 So.2d 109 (Fla. 1991) and Rock v. State, 584 So.2d 1110 (Fla. 1st DCA1991). Pursuant to §948.06 in the absence of a pending violation ofprobation it is improper for the court to modify the terms and conditionsof probation by adding new terms rather than changing previouslyimposed terms. This is true even if the defendant has waived the right tonotice and hearing. Thus, the condition in the original sentence did notauthorize the court to initiate such a modification. Russo v. State, 603So.2d 1353 (Fla. 1st DCA 1992).

20. It was improper to add a condition that the defendant go to the restitutioncenter without a hearing even though the defendant agreed. His communitycontrol could not be violated on that basis. Sweeny v. State, 580 So.2d 337(Fla. 4th DCA 1991).

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21. The conditions of probation may be modified during the term of probationbut there is no authorization for an extension. An agreement by thedefendant to extend probation without a hearing or advice of counsel isa nullity. State v. Schafer, 583 So.2d 374 (Fla. 4th DCA 1991).

22. The court modified the defendant’s conditions of probation on a written

waiver and agreement by the defendant. This condition was invalidbecause there was no compliance with §948.06. Revocation for violationof such a condition is error. Rock v. State, 584 So.2d 1110 (Fla. 1st DCA1991), rev'd on other grounds, 605 So.2d 456 (Fla. 1992). See alsoWeidmann v. State, 582 So.2d 1251 (Fla. 2d DCA 1991).

23. It is improper for the trial judge to add conditions of probation without ajudicial determination that the defendant violated his probation. Malone v.State, 632 So.2d 1140 (Fla. 4th DCA 1994).

24. The defendant was charged with a violation of probation. At a hearing thedefendant appeared with her attorney. The attorneys announced an agreementin which the VOP was withdrawn and the defendant agreed to three newconditions. Subsequently, a new VOP was filed accusing her of violating twoof these new conditions. The defendant attacked the validity of the newconditions for the first time on appeal from the VOP. The court relied uponLippman v. State, 633 So.2d 1061 (Fla. 1994). In that case, as in the case atbar, the VOP was withdrawn in return for agreement to new conditions.There, as here, the defendant did not attack the new conditions at the timethey were imposed. This court relied on the following language fromLippman: “The prohibition against double jeopardy is ‘fundamental.’...As this Court concluded in State v. Johnson, 483 So.2d 420,423 (Fla.1986), ‘the failure to timely raise a double jeopardy claim does not, inand of itself, serve as a waiver of the claim.’” The court in this case wenton to conclude that the issue can be raised for the first time on direct appeal.Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996).

25. The defendant was ordered to pay a fine, but it was not made a condition ofprobation. The probation officer ordered that he make monthly payments onthat fine. When the defendant failed to do so, the probation officer filed anaffidavit of violation. The trial judge modified the probation to make paymentof the fine a condition of probation. On appeal, the court found that this wasan improper modification of probation. “Absent proof of a violation ofprobation, a trial court cannot modify an order of probation byenhancing its terms.” Nichols v. State, 672 So.2d 825 (Fla. 2d DCA 1995).

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26. To change a condition of probation so that the burden on the defendant isincreased or add conditions, the court must find that the defendant committeda violation of probation and follow the procedure in § 948.06, Fla. Stat.(1997). If the court fails to comply with these requirements, any changein the conditions of probation resulting in additional hardships orrestrictions constitutes additional punishment. The court has no authorityto make such changes even with the defendant’s consent and attemptedwaiver of double jeopardy protections. The double jeopardy clause barsthem regardless of the reason. Casterline v. State, 703 So.2d 1071 (Fla. 2dDCA 1997); Martin v. State, 691 So.2d 1204 (Fla. 4th DCA 1997).

27. In 1991 the defendant was charged with aggravated assault and a violation ofprobation based on that new crime. The trial judge found the defendant notguilty of the violation. The defendant asked to be released on his ownrecognizance pending resolution of the aggravated assault. The state had noobjection, but they requested that the terms of his probation be changed toprohibit contact with minors. The defense counsel objected; however, hegave in when the trial judge indicated that his request for release would beconsidered at a future date. The court said, “‘So, it would be withoutobjection by your client to modify the probation to require that he haveno contact with minor children, that is anyone under the age of eighteen,without the presence of another responsible adult.’” Thus, the courtentered an order modifying his probation by adding that condition. In 1996the defendant’s probation was revoked for violating that new condition. Hismotion for postconviction release was denied. On appeal, the court reversed.The court found that the new condition was an enhancement. “While itis true that the trial court has the right to rescind or modify terms andconditions of probation at any time pursuant to section 948.01(5),Florida Statutes (1991), ‘[a]bsent proof of a violation, the court cannotchange an order of probation by enhancing the terms.’” The court alsostated that probation is a sentence and double jeopardy barsenhancements or extensions of probation. Furthermore, “when a non-violating probationer agrees to the enhancement of the terms ofprobation, he is not estopped from, raising the double jeopardyinfringement.... The prohibition against double jeopardy ... has not beenwaived by the failure to raise this issue on appeal of the originalimposition of the condition or by failure to appeal the subsequentrevocation of probation.” The court ruled that the 1991 modification wasa nullity and the defendant’s probation could not be violated in 1996 for aviolation of that condition. Casterline v. State, 703 So.2d 1071 (Fla. 2dDCA 1997).

28. The defendant could not be violated for failure to comply with curfew

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because it was imposed after the imposition of probation; therefore, itwas an enhancement in violation of the Double Jeopardy Clause. Thedefendant was accused of violating probation, but that charge was dismissedand he was told to enter a treatment program. Until a bed was available hewas to abide by a curfew. That requirement was imposed after dismissal ofan affidavit of violation, but not as a result of a finding of violation. Maddoxv. State, 97 So.3d 332 (Fla. 2d DCA 2012).

29. The trial judge improperly modified the defendant’s community control byimposing a six-month jail sentence after the filing of an affidavit. On appeal,the court found that this was an improper enhancement. “A trial court mayat any time modify community control conditions it has previouslyimposed but cannot enhance the penalty or add new conditions, as it didwith Garvison’s six-month jail sentence. See § 948.03(6), Fla. Stat.(1997). Even though Garvison agreed to the six-month jail sentence, thisdoes not cure the error.” Apparently, the trial judge never actually foundthat there was a violation. Garvison v. State, 775 So.2d 340 (Fla. 2d DCA2000).

30. Originally, it was a condition of the defendant’s probation that he not haveunsupervised contact with children under sixteen years of age. At the time ofthe sentence the defendant was living with his wife and three children. Hecontinued to do so. Later a new probation officer asked for clarification as towhether the condition also applied to his own children. The trial judgeordered that the restriction did apply to the defendant’s children.Subsequently, the probation officer determined that the defendant was stillliving with his wife and three children. The officer filed a violation and thetrial judge revoked the defendant’s community control. On appeal the courtreversed. “Considering the fact that appellant was not charged withviolating the original condition, along with the fact that the courtreferred to the action it was taking as a modification, we conclude thatthe court had not originally intended the condition to apply toappellant’s own children. The modification was, accordingly, anenhancement, because it was more restrictive than the originalcondition, and thus violates the prohibition against double jeopardy.”Jean v. State, 711 So.2d 1315 (Fla. 4th DCA 1998).

31. Changing the person who is to receive restitution without changing theamount, is a permissible modification of the conditions of probation.Wanner v. State, 746 So.2d 478 (Fla. 2d DCA 1999).

32. “A trial court must first determine that there has been a violation ofprobation before it can enhance the terms and conditions of probation.

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Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994). ‘An enhancement ofprobation where there is no proof of a violation of probation is aviolation of the double jeopardy prohibition against multiplepunishments for the same offense.’ Id.; see also Cole v. State, 745 So.2d1001, 1002 (Fla. 2d DCA 1999). Under Lippman, the test as to whether themodification of a condition of probation is an improper enhancement turnson whether the change is more restrictive than the original condition.Lippman, 633 So.2d at 1064. An original condition of Blair’s probationwas that he not use intoxicants to excess. The added condition, specialcondition two, was that Blair not consume or possess any alcoholicbeverages. Because special condition two was more restrictive than theoriginal condition and it was imposed even though the trial court foundthat Blair had not violated his probation, it constitutes an illegalenhancement. See Waldon v. State, 670 So.2d 1155, 1159 (Fla. 4th DCA1996).” Blair v. State, 805 So.2d 873 (Fla. 2d DCA 2001).

33. “Because of Blair’s knowledge of the conditions of his probation, hisrepeated failure to raise the issue of the illegal enhancement in the trialcourt or in any prior appeal, and his plea of guilty to a violation ofprobation in exchange for the continuation of his probation, we concludethat Blair waived his double jeopardy claim and cannot now complain ofthe 1998 enhancement of the conditions of his probation. We thus affirm thefinding that Blair violated his probation due to the use of alcohol.” Blair v.State, 805 So.2d 873 (Fla. 2d DCA 2001).

34. “Section 948.03(2), Florida Statutes, provides that a trial court ‘may rescindor modify at any time the terms and conditions theretofore imposed by itupon the probationer.’ However, ‘absent a violation of probation orcommunity control, it may not add new conditions or enhance the penalty.’Wesner v. State, 843 So.2d 1039, 1040 (Fla. 2d DCA 2003). ‘Anenhancement of probation where there is no proof of a violation ofprobation is a violation of ‘the double jeopardy prohibition againstmultiple punishments for the same offense.’ ’ Blair v. State, 805 So.2d873, 877 (Fla. 2d DCA 2001) (quoting *203 Lippman, 633 So.2d at 1064).Further, ‘[u]nder Lippman, the test as to whether the modification of acondition of probation is an improper enhancement turns on whether thechange is more restrictive than the original condition.’ Id. (citingLippman). There was no affidavit of violation, but the trial judge changed thedefendant’s conditions. “At the time of the hearing on the State’s requestedmodification, Loncar’s probation required that he have no contact with thevictim or the victim’s family and that he be subject to GPS monitoring by theDepartment of Corrections. These conditions would not have preventedLoncar from residing with his father in the newly purchased home.

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However, the modification to prohibit him from residing within ten milesof the victim prevented him from residing with his father and, thus, wasmore restrictive than the probation conditions that were in effect.Because the circuit court did not find that Loncar had violated hisprobation, its modification of Loncar’s probation to include a morerestrictive condition violated double jeopardy. See Lippman, 633 So.2dat 1064.” Loncar v. State, 27 So.3d 200 (Fla. 2d DCA 2010).

35. The defendant failed to complete the sex offender treatment program becauseof excessive absences and there was insufficient time left in the term ofprobation to complete the program. “The DOC asked that the defendant’sprobation be extended for two years to allow for completion of ... program.According to the author of the letter ... the matter had been discussed with thedefendant who was happy about the extension in lieu of revocationproceedings.” A copy of the letter was not provided to the defendant nor wasthe defendant furnished with notice of the hearing set on the request. “Thetrial court treated the letter as a motion to extend probation ... conducted [ahearing] on the request....” The defendant was not present. The trial judgeordered that the defendant’s probation be extended “‘until successfulcompletion of sex offender treatment.’” But the court did not find that thedefendant had violated his probation. Subsequently, the defendant’s probationofficer filed an affidavit of violation during this extended term. The defendantmoved to dismiss on the grounds that the extension violated the DoubleJeopardy Clause. The court reversed. The State argued that the defendanthad waived his rights. The court stated that probation can only be extendedpursuant to Chapter 948. “In Clark, the Supreme Court held that beforethe probationary term can be extended, a violation of probation must beformally charged and the probationer must be brought before the courtand advised of the charge following the procedures of section 948.06,Florida Statutes. 579 So.2d at 110-11.” The State argued that there was noerror “because the defendant verbally agreed with the DOC to an extensionof the probationary term in lieu of revocation.... T]he State maintains thathere the evidence is that the defendant accepted the benefit of the extensionand avoided revocation of his probation thereby effectively waiving anydouble jeopardy claim.” The state relied upon the decision in Blair v. Statewhere the court concluded: “Because of Blair’s knowledge of theconditions of his probation, his repeated failure to raise the issue of theillegal enhancement in the trial court or in any prior appeal, and his pleaof guilty to a violation of probation in exchange for the continuation ofhis probation, we conclude that Blair waived his double jeopardy claimqqqq 805 So.2d at 878.” The court rejected this argument because “thedefendant never received formal notice of the purported violation ofprobation, nor of the hearing on the request of DOC to extend probation....

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Additionally, neither order extending probation reflects service upon thedefendant.” Since, the defendant wasn’t properly noticed of the hearing wherethe court extended the term and there was no showing that he received thecourt’s order, the court rejected the State’s contention that the defendantwaived the double jeopardy claim. “The extension of probation here wasimproper. Accordingly, the revocation of probation, based on anaffidavit filed after expiration of the original three year probationaryterm, was invalid.” Gearhart v. State, 885 So.2d 415 (Fla. 5th DCA 2004).

36. Imposition of costs for the first time on resentencing was improper.Simpkins v. State, 841 So.2d 643 (Fla. 2d DCA 2003).

37. The defendant was placed on sex offender probation for commission of alewd act on a child, a violation of section 800.04, Florida Statutes (2000).The act involved a teenage girl unrelated to the defendant. “In the writtenprobation order, the trial court imposed condition 16 as follows: ‘If thevictim(s) is/are under the age of 18, until successful completion of sexoffender treatment, you shall have no unsupervised contact withchildren less than eighteen (18) years of age without the approval of thesentencing court.’ This condition is worded differently than the statutorycondition contained in section 948.03(5)(a)(5), Florida Statutes (2000), whichprovides: ‘If the victim was under the age of 18, a prohibition, untilsuccessful completion of a sex offender treatment program, onunsupervised contact with a child under the age of 18, unless authorizedby the sentencing court without another adult present who is responsiblefor the child's welfare, has been advised of the crime, and is approved bythe sentencing court.’” The defendant subsequently sought modificationbefore completion of the program so that he could have unsupervised contactwith his six-year-old son and his grandchildren. The trial judge concludedthat she did not have the authority to grant the request until the defendantcompleted treatment. On review, the court reversed. “We read the languageof condition 16 and section 948.03(5)(a)(5) as prohibiting unsupervisedcontact with children under eighteen until after completion of the sexoffender treatment program unless, prior to completion of the program, thetrial court authorizes such unsupervised contact. We also note thatpursuant to section 948.03(6), a trial court has the authority to rescindor modify the terms of probation or community control at any time, butabsent a violation of probation or community control, it may not addnew conditions or enhance the penalty.” Wesner v. State, 843 So.2d 1039(Fla. 2d DCA 2003).

38. The defendant asked to change a special condition of probation that requiredhe live at the Avondale Manor assisted living facility. He wanted to change

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that requirement to allow him to live at Abbey Manor assisted living facility.On appeal, the court ruled that the modification was valid because therewas no indication that the new assisted living facility is more restrictivethan the current assisted living facility. Berchin v. State, 938 So.2d 659(Fla. 4th DCA 2006).

39. The trial court cannot modify a mandatory condition of probation so asto reduce the defendant’s obligation. Thus, it was improper for the courtto modify a condition of sex offender probation to allow the defendant to livewithin 1000 feet of a playground. State v. Springer, 965 So.2d 270 (Fla. 5thDCA 2007).

40. Miami-Dade County has an ordinance prohibiting sex offenders from livingwithin 2500 feet of a school. State law maintains a limit of 1000 feet.Defendant argued that the ordinance was an improper expansion of theconditions of probation, which had not been imposed by the court. Onappeal, the court disagreed because it was a condition of probation thatthe defendant not violate the law and for the defendant to violate theordinance would be a violation of a court imposed condition. Calderonv. State, 93 So.3d 439 (Fla. 3d DCA 2012).

B. Extension of term of probation without VOP.

1. The trial court may not extend probation based on an agreement by thedefendant with her probation officer in lieu of being charged with aviolation, without a hearing or advise of counsel, followed by an ordersigned by the judge prior to the expiration of the term of probation. Theagreement is a nullity and the court no longer has jurisdiction after theexpiration of the original term of probation. The sole method forextending probation is set forth in §948.06. Marsh v. State, 559 So.2d 411(Fla. 2d DCA 1990). See also Clark v. State, 579 So.2d 109 (Fla. 1991);Burney v. State, 577 So.2d 722 (Fla. 2d DCA 1991); Carter v. State, 516So.2d 331 (Fla. 1st DCA 1987).

2. The defendant and his probation officer appeared before the courtwithout a pending violation and agreed to a two year extension ofprobation so that he could pay restitution. The court ordered the extension.During that two year extension the probation officer filed an affidavit ofviolation and the court revoked probation. The court reversed because theexclusive way to revoke probation is set forth in section 948.06. Thatprocedure was not followed; therefore, the court lacked jurisdiction torevoked probation. “[A] probationer’s agreement to extend probation,made without a hearing or the advice of counsel, is a nullity. (Citation

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omitted) ‘A probationer cannot agree with his probation officer to anextension of probation in lieu of compliance with the procedures setforth in [section] 948.06.’ (Citation omitted) .... Although appellantarguably received a hearing before his probation was extended, it cannotbe said that he received notice of a violation, because no affidavit ofviolation was ever filed.... The trial court’s informing appellant that he couldchoose to have a ‘violation order’ and probation hearing, where appellantwould be represented by counsel, was insufficient to constitute a knowingwaiver of appellant’s right to counsel, and did not comply with therequirements of section 948.06.” Mundorff v. State, 890 So.2d 1234 (Fla.1st DCA 2005).

3. The defendant was originally sentenced to five years of sex offenderprobation after a prison term. After his release from prison, the defendantfiled a motion asking for a two year extension of probation in return fordismissing civil commitment proceedings. The judge granted the motion.Subsequently, the State filed a violation of probation during the two yearextension. On appeal, the court ruled that the trial judge lacked jurisdiction.“Before probation may be enhanced, either by extension of the period orby addition of terms, a violation of probation must be formally chargedand the probationer must be brought before the court and advised of thecharge, following the procedures of section 948.06.” Thus, the extensionhere was invalid and probation had expired before the filing of the violation.Eddie v. State, 933 So.2d 570 (Fla. 1st DCA 2006). See alsoGarcia-Medina v. State, 2013 WL 5225351, 38 Fla. L. Weekly D1985 (Fla.2d DCA Sep 18, 2013)(where the court increased sentence from 18 monthsprobation to 5 years without compliance with §948.06 increase was barred bydouble jeopardy; and a subsequent violation was invalid; failure to objectuntil the subsequent violation did not constitute a waiver).

4. Where an order is entered changing defendant’s probation by extending it fora period of time, but the modification order is executed after the term ofprobation has expired, the court lacks jurisdiction to subsequently violate thedefendant’s probation even though it has been extended. Frazier v. State,510 So.2d 646 (Fla. 2d DCA 1987).

5. The conditions of probation may be modified during the term of probationbut there is no authorization for an extension. An agreement by thedefendant to extend probation without a hearing or advise of counsel isa nullity. State v. Schafer, 583 So.2d 374 (Fla. 4th DCA 1991).

6. Probation falls within the protection of the double jeopardy clause. Itviolated that clause for the trial judge to increase the probationary period

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because she had misconceived the legal effect of the guidelines whenimposing the original sentence. Spear v. State, 632 So.2d 201 (Fla. 1st DCA1994).

7. When the defendant asks the court to extend probation so that she could payrestitution, and the extension exceeded the statutory maximum period ofincarceration, the trial court did not have jurisdiction to enter a judgmentfor the restitution during the excess period. Migliano v. State, 700 So.2d131 (Fla. 4th DCA 1997).

8. But when the defendant accepted the benefit of an extension, which didnot exceed the statutory maximum period of incarceration, the defendantcould not raise the invalidity of the modification during a subsequentviolation proceeding. Battles v. State, 919 So.2d 621 (Fla. 1st DCA 2006).

9. “[I]n order for the trial court to modify the terms and conditions ofprobation by extending the probationary period, the State must provethat the defendant’s violation was willful and substantial.” In this case,the defendant was accused of a violation of a probation and the trial courtextended his probation, but the evidence did not support the conclusion thathe had willfully violated the terms of his probation. During the extendedperiod of probation the defendant allegedly violated his probation again. Thefirst probation order was reviewed on a belated appeal. Since the courtfound that there was insufficient evidence of a willful violation, theextension was invalid; therefore, the court had no jurisdiction on thesecond violation of probation. Perez v. State, 884 So.2d 306 (Fla. 2d DCA2004).

10. See cases above under modification.

III. Jurisdiction.

A. Invoking jurisdiction.

1. Prior to 1999 the jurisdiction of the court was invoked by the signing of awarrant by a judge and delivery of the warrant to the appropriate countysheriff for execution. State v. Boyd, 717 So.2d 524 (Fla. 1998). See alsoBaker v. State, 833 So.2d 301 (Fla. 1st DCA 2002); Paulk v. State, 733So.2d 1096 (Fla. 3d DCA), rev. denied, 744 So.2d 457 (Fla. 1999).

2. In the 1999 session, the legislature amended §901.02, to read, “A warrantis issued at the time it is signed by the magistrate.” This effectivelynullified State v. Boyd, 717 So.2d 524 (Fla. 1998). “Thus, a defendant’s

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probation could be revoked if the judge signs the warrant before theterm of probation expires even if it is not delivered to the sheriff to beexecuted until after the probationary period has ended.” McNeal v.State, 741 So.2d 1205 (Fla. 1st DCA 1999).

3. §948.06 Fla. Stat. has been amended a couple of times so that subsection948.06 (1) and (2), in pertinent part, reads: “Upon the filing of anaffidavit alleging a violation of probation or community control andfollowing issuance of a warrant under s. 901.02, a warrantless arrestunder this section, or a notice to appear under this section, theprobationary period is tolled until the court enters a ruling on theviolation.”

4. Pursuant to statute, “the ‘issuance of the warrant is no longer a necessaryrequirement to start the violation process if a warrantless arrest wasmade or a notice to appear was issued.’” Chadwick v. State, 118 So.3d827 (Fla. 2d DCA 2012). Shenfeld

5. The revocation process must be invoked before the expiration of the term orthe court loses jurisdiction. Upon the filing of the affidavit, the warrantneed only be signed not filed to invoke the jurisdiction of the court. Inthis case, the dispute was over the amount of gain time that the defendantshould have received and that effected the expiration of the term of probation.Weinstein v. State, 935 So.2d 565 (Fla. 4th DCA 2006).

6. But signing of the affidavit and issuance of an arrest warrant is sufficienteven though they are not filed until after expiration of the term. State v.Wimberly, 574 So.2d 1216 (Fla. 2d DCA 1991).

7. The act of filing an information charging the defendant with committinga crime which is the basis for a violation of probation on another chargeis insufficient to set a revocation proceeding in motion, and where theaffidavit was not filed until after the term of probation expired the trial judgehad no jurisdiction to revoke probation. Minninger v. State, 517 So.2d 758(Fla. 2d DCA 1987).

8. An affidavit for violation of probation was filed the day before and thewarrant was signed on the day of the expiration of the probationary period,but the defendant was not arrested and the affidavit was not dated as filedwith the court until after the expiration of that period. The defendant arguedthat the court had no jurisdiction. On appeal the Court stated: “ ‘it is clearthat upon expiration of the probationary period the court is divested ofjurisdiction over the person of the probationer unless in the mean time

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the processes of the court have been set in motion for revocation ormodification of the probation....’ (emphasis supplied) [citations omitted]...Although the affidavit of violation in the instant case was not filed until after[the defendant’s] term of probation had ended, it is clear that the actionwhich set the revocation processes in motion - i.e., the signing of theaffidavit of violation and the issuance of an arrest warrant based on theaffidavit - took place prior to the expiration of probation.” (emphasis bythe court). Fryson v. State, 559 So.2d 377 (Fla. 1st DCA 1990).

9. The defendant filed a petition for writ of habeas corpus. The defendant wasplaced on one years probation on June 7, 2004. On May 19, 2005, an affidavitof violation of probation was filed, but no warrant was sought. Defendant wasthen given notice by mail from the court to appear for a violation hearing onMay 31, 2005. However, that notice was mistakenly mailed to his formeraddress. Nevertheless, the defendant did come to court on that date, but hewas too late. “Baroulette’s case was reset for June 9, 2005. Meanwhile, onJune 7, 2005, Baroulette’s probation ended. When Baroulette appeared incourt on June 9, defense counsel argued that the court lacked jurisdiction overBaroulette because the probationary period had expired. The trial courtdeclined to dismiss the case for lack of jurisdiction, concluding that thesetting of the case for a violation hearing on May 31 and mailing thenotice to Baroulette, albeit to a former address, was sufficient to have‘set in motion’ the revocation proceedings so that the court retainedjurisdiction.... Once a term of probation has expired, a court lacksjurisdiction to entertain an application for revocation of probation basedupon a violation that occurred during the probation period unless,during the term of the probation, appropriate steps have been taken torevoke or modify probation. State v. Boyd, 717 So.2d 524 (Fla.1998). Themere filing of an affidavit of violation of probation is insufficient toensure a trial court’s jurisdiction over a defendant for the purpose ofrevoking probation after the probationary period has concluded.Shropshire v. State, 775 So.2d 349, 350 (Fla. 2d DCA 2000); Paulk v. State,733 So.2d 1096, 1097 (Fla. 3d DCA 1999). Rather, an arrest warrant mustensue out of the violations alleged in the affidavit.... Here, the fact thatan affidavit of probation violation was filed against Baroulette on May19 is insufficient for the court to retain jurisdiction over him to revokeprobation.(Citations omitted) Nor is the state’s position aided by the factthat the trial court set and aborted a hearing on the affidavit. We findthat the trial court lacks jurisdiction to hold Baroulette in custody andorder his immediate release. (Citation omitted)This opinion shall take effectimmediately notwithstanding the filing of any motions for rehearing.”Baroulette v. McCray, 904 So.2d 575 (Fla. 3d DCA 2005).

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10. The “issue before this court is whether the State met the tollingrequirements of section 948.06(1) when no arrest warrant issued and theonly affidavit filed is a notarized arrest affidavit/first appearance formstamped Special Handling Violation of Probation.... Once a term ofprobation expires, a court lacks jurisdiction to entertain an application for arevocation of probation based upon a violation that occurred during theprobation period unless, during the term of probation, appropriate steps weretaken to revoke or modify probation. Stambaugh v. State, 891 So.2d 1136,1139 (Fla. 4th DCA 2005). The appropriate steps require the issuance ofan arrest warrant based upon an affidavit alleging a violation ofprobation....We reject the State’s argument that the issuance of an arrestwarrant was not required here because the law enforcement officer knewof Jones’s probationary status and Jones had already been arrested forrobbery.... Here, even if one construes the arrest affidavit/firstappearance form filed 22 May 2003 as a properly sworn affidavit, it isthe issuance of the warrant prior to the expiration of the probationaryperiod that vests the trial court with jurisdiction, not the filing of theaffidavit. See Crain v. State, 914 So.2d 1015, 1017 (Fla. 5th DCA 2005).Both the filing of an affidavit of violation and the issuance of an arrestwarrant are required to toll the probationary period, and the mere filing of theaffidavit is insufficient. Sepulveda v. State, 909 So.2d 568, 570 (Fla. 2d DCA2005).” Jones v. State, 964 So.2d 167 (Fla. 5th DCA 2007).

11. In this case, the court distinguished the decision in Jones and ruled that theissuance of an arrest warrant was not necessary to invoke thejurisdiction of the court. The defendant was arrested by his probationsupervisor and brought before the court on his warrantless arrest beforethe term of his community control expired. The defendant argued that thetrial court lacked jurisdiction because no arrest warrant was issued. The courtsaid: “An arrest warrant would not have served any purpose becauseMr. Tatman was lawfully arrested and brought before the court. Thusthe issuance of an arrest warrant here was not necessary to set therevocation process in motion. The ... decision in Jones does not compel adifferent result. In Jones, the Fifth District interpreted the 2003 version ofsection 948.06(1). Mr. Jones was arrested for a new law violation before hisprobation period expired. 964 So.2d at 168-69. The arrest affidavit indicatedthat the new law violation constituted a violation of Mr. Jones’ conditions ofprobation. Id at 169. No proper affidavit of violation of probation was filedand no arrest warrant was issued before Mr. Jones’ probation period expired.Id. At 170. On appeal, the State cited Grubbs as support for its argument thatthe issuance of an arrest warrant was unnecessary because Mr. Jones hadbeen arrested before the probationary period expired and the arresting officerknew about the probationary status. Id. The Fifth District rejected this

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argument because, unlike the 1977 version of section 948.06 interpreted bythe Grubbs court, the 2003 version of that statute expressly required thefiling of an affidavit of violation of probation and the issuance of anarrest warrant before the probationary period would be tolled. Id. At169-170. Because no affidavit of violation of probation was filed or arrestwarrant was issued before the probationary term expired, The Fifth Districtreversed the revocation of Mr. Jones’ probation. Id. At 171. Jones isdistinguishable from this case for two reasons. First, an affidavit ofviolation of community control was filed before Mr. Tatman’s term ofcommunity control expired. Second, like in Grubbs, the version of section948.06(1) applicable to this case does not include a tolling provision thatrequires the filing of an affidavit of violation of probation or the issuanceof an arrest warrant. Therefore, the issuance of an arrest warrant wasunnecessary because Mr. Tatman had been legally arrested and broughtbefore the court prior to the expiration of his term of communitycontrol.” Tatman v. State, 32 So.3d 73 (Fla. 2d DCA 2009).

12. When the defendant raised jurisdiction, the State had the burden ofproving that the revocation process was timely commenced. Boyd v.State, 699 So.2d 295 (Fla. 1st DCA 1997), affirmed, 717 So.2d 524 (Fla.1998). See also Brown v. State, 745 So.2d 416 (Fla. 1st DCA 1999).

13. It was a condition of probation that probation would be terminated uponpayment of restitution. The defendant allegedly tested positive for cocaineon October 1, 1993. He paid restitution on October 4, 1993. He again faileda drug test in December of 1993. A warrant for a violation based on the drugtest was issued in December. The court held that probation wasterminated as of October 4, 1993. A violation of probation and a sentencefor that violation resulted in double jeopardy. The defendant could seek reliefpursuant to Rule 3.800(a). Jett v. State, 722 So.2d 211 (Fla. 1st DCA 1998).

14. The court disagreed with the conclusion in Jett that once the term ofprobation has expired, punishment for a violation occurring before theexpiration of the term constitutes double jeopardy unless a violation isinitiated before the expiration of the term. “We adopt, instead, thereasoning of Judge Benton’s concurrence in that case and hold thatwhere it can be determined without an evidentiary hearing that asentence has been imposed by a court without jurisdiction, that sentenceis illegal, whatever its length.” The court agreed that the defendant couldseek relief pursuant to Rule 3.800(a), provided that the error is apparent fromthe record and does not require an evidentiary hearing. Slingbaum v. State,751 So.2d 89 (Fla. 2d DCA 1999). See also Laster v. State, 805 So.2d 909(Fla. 2d DCA 2001).

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15. It was fundamental error to revoke probation where no action wastaken on the violation until the term had expired; therefore, the defendantcould raise it for the first time on appeal. Hebb v. State, 714 So.2d 639 (Fla.4th DCA 1998). See also Weinstein v. State, 935 So.2d 565 (Fla. 4th DCA2006); Otero v. State, 793 So.2d 1115 (Fla. 4th DCA 2001); Ely v. State,719 So.2d 11 (Fla. 2d DCA 1998).

16. Where the defendant was sentenced to a term of community control thatexceeded the statutory maximum when added to the previous term ofincarceration and community control, the court still had jurisdiction toproceed on any violations that were committed during the lawful portion ofthe term. The affidavit was filed during the lawful portion of the sentence. Itdid not, however, have jurisdiction to proceed on any violations allegedin an affidavit filed during the unlawful period of the term. The courtrelied on its earlier decision in Collins v. State, 697 So.2d 1305 (Fla. 4thDCA 1997) and the recent Supreme Court decision in Taylor v. State, 702So.2d 487, 488 (Fla. 1997), where the Court agreed with this statement fromCollins “‘A defendant who violates his probation should not be able toescape punishment when the violation occurs during the legal portion ofthe sentence and the violation is unrelated to that illegality.’” Hendersonv. State, 720 So.2d 1121 (Fla. 4th DCA 1998).

17. If the court extends probation beyond the statutory maximum period ofincarceration, but the violation occurs during the part of the term that iswithin the time limit, the court may revoke the defendant’s probation.Taylor v. State, 702 So.2d 487 (Fla. 1997); Collins v. State, 697 So.2d 1305(Fla. 4th DCA 1997).

18. If the defendant is sentenced to serve an illegal term of probation and theaffidavit of violation is filed during the illegal portion of the sentence, theaffidavit should be dismissed because the court’s jurisdiction expired whenthe maximum probationary term expired. Wilson v. State, 698 So.2d 1380(Fla. 4th DCA 1997).

19. “‘[W]hen a probationary period expires, the court is divested ofjurisdiction over the probationer unless, prior to that time, theappropriate steps were taken to revoke or modify probation.’” Montesv. State, 723 So.2d 881 (Fla. 3d DCA 1998).

20. On February 27, 1997, the defendant was sentenced to community control forone year. “[T]he trial court did not lose jurisdiction because the affidavitalleging a violation of community control was filed on February 12, 1998,

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which was within one year of imposition of the original sentence. Thus,the process of revocation was set in motion in a timely fashion.” C.B v.State, 729 So.2d 538 (Fla. 1st DCA 1999). See also Turner v. State, 737So.2d 626 (Fla. 1st DCA 1999).

21. The defendant was sentenced to two years community control, followed byeight years probation. The defendant was accused of violating his communitycontrol, but the affidavit was filed and the warrant signed more than twoyears after the defendant was placed on community control. The stateargued that the court had jurisdiction because the defendant continuedto be supervised pursuant to the probationary period. The trial courtrevoked the defendant’s community control. On appeal, the court reversed.“Since the revocation of community control process was not set inmotion during the community control period, we conclude the trial courtlost authority to revoke appellant’s community control.” The court alsonoticed that the condition the defendant violated, was not a condition of thesubsequent term of probation. Hoffman v. State, 729 So.2d 421 (Fla. 1stDCA 1999). See also Abbey v. State, 39 So.3d 546 (Fla. 2d DCA 2010).

22. The ruling in Hoffman applies to community control. Therefore, the courtlost jurisdiction to revoke community control where the process was not setin motion until after the two years term of community control expired.Ermatinger v. State, 866 So.2d 698 (Fla. 2d DCA 2003).

23. Defendant was placed on probation for two years for a felony and one yearfor one misdemeanor and six months for another. A warrant was issued morethan one year, but less than two years later. On appeal, the court held thatthe court no longer had jurisdiction over the misdemeanors. Marshall v.State, 934 So.2d 665 (Fla. 2d DCA 2006).

24. The defendant was convicted of multiple violations of community control.“Allegations (3)-(8) involve violations of Appellant’s community control,which expired on January 29, 2004, two weeks before the arrest warrant wassigned. See Hoffman v. State, 729 So.2d 421, 423 (Fla. 1st DCA 1999)(holding trial court cannot revoke probation based on violation ofcommunity control if warrant not signed before expiration of communitycontrol period). Accordingly, revocation based on allegations (3) through (8)must also be reversed. Powell v. State, 920 So.2d 720 (Fla. 1st DCA 2006).

25. Jail was imposed as a condition of probation. The defendant was alsosentenced to one year of probation. Since the jail sentence was a conditionof probation, it had to be counted in determining what portion of theone-year probation had expired when a violation was filed. When that

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was counted the affidavit in this case was not filed until after the probationaryterm had expired; therefore, the trial court was without jurisdiction. Belt v.State, 748 So.2d 386 (Fla. 5th DCA 2000).

26. In this case, the probation officer made a warrantless arrest upon learning ofa vop and filed a criminal arrest affidavit/notice to appear. There was atechnical deficiency in that affidavit involving the absence of a notary stamp,which was subsequently cured by the filing of an affidavit of violation. Thelatter affidavit was filed outside the expiration of the original term ofprobation. “We hold that a criminal report affidavit may serve as anaffidavit alleging a violation of probation sufficient to toll a term ofprobation so long as its factual content is sufficient to fulfill this function.We further hold that a technical deficiency in an affidavit of violation ofprobation can be cured by amendment, allowing the original affidavit totoll the term of probation from the time it was originally filed.”Chadwick v. State, 118 So.3d 827 (Fla. 2d DCA 2012).

27. The defendant was placed on probation on two charges with different casenumbers. The affidavit and warrant only listed one case number. Thedefendant made no objection. The trial judge revoked probation on bothcases. On appeal, the court found that the trial judge had no jurisdictionover the case that was not listed on the affidavit or warrant, and it wasfundamental error for the court to revoke probation on the charge thatwas not listed. Jean-Marie v. State, 833 So.2d 870 (Fla. 4th DCA 2003).See also Nelson v. State, 16 So.3d 165 (Fla. 2d DCA 2009)

28. One year term of probation was imposed on August 27, 2007 and an affidavitwas signed and the warrant issued on August 27, 2008. That was one daytoo late. Probation expired on August 26, 2008. Crum v. State, 42 So.3d 964(Fla. 4 th DCA 2010).

B. Period during which violation may be filed and amended and tolling.

1. Reversal of an order of revocation on the grounds that it was basedsolely on hearsay does not ordinarily bar a second revocation hearing onthe filing of another affidavit alleging the same violation, but if thedefendant has served the sentence imposed on the violation, the court lacksjurisdiction to proceed on the second hearing. McCarrick v. State, 553So.2d 1373 (Fla. 2d DCA 1989). See also Chavous v. State, 597 So.2d 943(Fla. 2d DCA 1992); Wilson v. State, 842 So.2d 237 (Fla. 2d DCA 2003).

2. The trial court has the power to revoke probation after the order ofprobation has been entered, but prior to the time the probation period

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actually commences based on conduct which shows that the defendantis unfit for probation. This conduct must be willful and substantial.Stafford v. State, 455 So.2d 385 (Fla. 1984); Seitz v. State, 867 So.2d 421(Fla. 3d DCA 2004); Johnson v. State, 561 So.2d 1254 (Fla. 2d DCA 1990).This does not permit revocation based on technical violations where thedefendant has not started serving his term of probation and has not beeninstructed on the terms of his probation. Washington v. State, 579 So.2d400 (Fla. 5th DCA 1991). See also Martin v. State, 796 So.2d 1271 (Fla. 4thDCA 2001), rev. denied, 816 So.2d 127 (Fla. 2002).

3. “The question presented is whether a defendant’s failure to provide asuitable residence address prior to his release from prison constitutes awillful and substantial violation of the condition of his sex offenderprobation that prohibits him from living within 1,000 feet of designatedplaces where children regularly congregate, when the defendant had notyet been released from prison and when the condition of probation doesnot require that the defendant provide a suitable address. The trial courtanswered yes, but we answer no. We therefore reverse.” The defendant’sprobation was violated for not giving a suitable address as required by statutebefore his release from custody. “However, neither Special Condition 2 northe statute requiring its imposition, section 948.03(5)(a)2., Florida Statutes(2001), requires King to give a suitable address prior to his release fromprison or, for that matter, that he give any address at all. Therefore, failing toprovide a suitable address does not provide a basis to find a willful andsubstantial violation of that condition.... King argues that because he wasserving his prison sentence at the time he failed to provide a suitable address,his probation had not yet commenced and, therefore, he could not havecommitted a violation of the terms and conditions of his probation. It hasbeen firmly established by the Legislature and the courts for quite sometime that the period of probation commences when the defendant isreleased from incarceration.... However, the courts have held that adefendant’s probation may be revoked prior to the commencement ofprobation if he commits an act of misconduct that demonstrates hisunfitness for probation. Stafford v. State, 455 So.2d 385, 386 (Fla.1984)(quoting with approval Martin v. State, 243 So.2d 189, 191 (Fla. 4th DCA)(‘[T]he court can revoke an order of probation, the term of which has not yetcommenced, should the court determine that the defendant probationer hasbeen guilty of misconduct occurring subsequent to the entry of the order ofprobation.’), cert. denied, 247 So.2d 63 (Fla.1971)). Here, not only did Kingnot violate any condition of his probation, he did not commit any crimeor engage in any act of misconduct prior to the commencement of hisprobation that would demonstrate his unfitness as a probationer. Hence,under these circumstances, we fail to see how the trial court could have

27

properly revoked King’s probation.” King v. State, 990 So.2d 1191 (Fla.5th DCA 2008).

4. Where a person is sentenced to jail to be followed by a term of probationand violates a special condition of probation while serving the jailsentence, the probation can be revoked based on that violation. Casonv. State, 604 So.2d 928 (Fla. 3d DCA 1992).

5. “In Crutchley v. State, 705 So.2d 966, 967 (Fla. 5th DCA 1998), this courtheld that smoking marijuana before release from prison is ‘[m]isconductoccurring subsequent to the entry of an order of probation [that] permitsa court to revoke probation.’” King v. State, 990 So.2d 1191 (Fla. 5thDCA 2008).

6. The defendant was placed on community control to be followed by probation.During the community control an affidavit of violation was filed. The courtrevoked the defendant’s community control and his probation, even thoughit had not started to run because community control had not expired.The court held that it was proper to revoke the probation, but theprocedure was defective because there was no affidavit alleging that thestate was seeking to revoke probation. Gamble v. State, 685 So.2d 1310(Fla. 2d DCA 1996).

7. It was not proper for the court to revoke probation for an offense that wascommitted before probation was imposed. Nelson v. State, 802 So.2d 470(Fla. 2d DCA 2001).

8. The defendant’s probation was revoked for conduct occurring after theprobation order was entered, but while he was still in prison. He contendedthat he could not have violated the terms of his probation while in prison andbefore he began serving the probation. The court rejected that argument.“Misconduct occurring subsequent to the entry of an order of probationpermits a court to revoke probation. Stafford v. State, 455 So.2d 385 (Fla.1984).” Crutchley v. State, 705 So.2d 966 (Fla. 5th DCA 1998).

9. When a probationer absconds from probationary supervision and fails toreport his whereabouts, the probationary period is tolled until the pro-bationer is again placed under probationary supervision. Based on thisprinciple the Court held that a defendant’s probation could be revokedbased upon an affidavit filed after the probation was originally toterminate, but within the period resulting from the tolling. Williams v.State, 529 So.2d 366 (Fla. 2d DCA 1988). See also Gordon v. State, 649So.2d 326 (Fla. 5th DCA 1995); Ware v. State, 474 So.2d 332 (Fla. 1st DCA

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1985), rev. denied, 484 So.2d 10 (Fla. 1986)(defendant’s probation was tolledwhen he changed his residence, absconded from supervision, and made hiswhereabouts unknown).

10. Failing to appear for intake and to attend counseling sessions does notconstitute absconding. Paulk v. State, 733 So.2d 1096 (Fla. 3d DCA), rev.denied, 744 So.2d 457 (Fla. 1999).

11. “The failure to file monthly reports is simply a violation of a condition ofprobation. In this case, appellant continued to be under the ‘controllingarm of the state’ as is demonstrated by the fact that the state arrestedher based upon the affidavit of violation. Appellant was not hiding, norhad she departed from the jurisdiction of the state. She simply failed tomake a report. Had her probation officer visited appellant at her listedaddress, she would have been able to find her, and an affidavit of violationcould have been served on her at any time at that location. We hold thatappellant had not absconded from supervision by failing to file hermonthly reports. Therefore, the probationary period was not tolled, and theaffidavit of violation was filed past the end of the term. The court had nojurisdiction to revoke the already terminated probation.” Young v. State, 739So.2d 1179 (Fla. 4th DCA 1999). See also Langley v. State, 839 So.2d 826(Fla. 4th DCA 2003).

12. The probationary period is not tolled by the commission of the violationor the filing of the affidavit; therefore, the defendant would be entitled tohave the period between the filing of the affidavit and the revocationcounted in determining whether any additional term of probation might causethe total probation served to exceed the statutory maximum period ofincarceration. Horton v. State, 700 So.2d 376 (Fla. 1997); Francois v. State,695 So.2d 695 (Fla. 1997); Wilson v. State, 698 So.2d 1380 (Fla. 4th DCA1997. [This has been changed by statute]

13. Cases dealing with amendment of the affidavit. [The impact of some ofthese decisions has been altered by the statute on tolling.]

a. Where the affidavit was filed before the probation expired and anamended affidavit was dated and provided to the defendantbefore the expiration of the term, but not filed prior to expira-tion, and the hearing was held before expiration and thedefendant acknowledged that the case was going forward on theamended affidavit, the requirements of due process were satisfiedand there was no jurisdictional problem created by the failure toplace the amended affidavit in the record. The Court distinguished the

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decision in Rodriguez by pointing out that the only affidavit filed inthat case was filed after the expiration of the term of probation.Kilpatrick v. State, 516 So.2d 56 (Fla. 2d DCA 1987).

b. Where an affidavit is filed before the expiration of the original termof probation, an amended affidavit is filed after the expiration ofthe term of probation, alleging new grounds for violation, and thestate withdraws the original affidavit, the defendant cannot beviolated on the grounds set forth in the amended affidavit because thecourt has no jurisdiction and the original affidavit cannot bereinstated on appeal. Brown v. State, 537 So.2d 180 (Fla. 3d DCA1989).

c. Where an amended affidavit was misplaced, but on remand by theappellate court the trial judge secured a copy of the affidavit and ofthe transcript of the violation of probation hearing, and was able todetermine that the amended affidavit was in fact the one on which thehearing went forward and the defendant was aware that they wereproceeding on the amended affidavit and the warrant for thedefendant’s arrest on the violation was issued before the expirationof the term of probation, there was no jurisdictional problem andthe probation was properly revoked. Harris v. State, 525 So.2d449 (Fla. 2d DCA 1988).

d. Five days prior to the expiration of the defendant’s probation anaffidavit was filed alleging that he had committed technicalviolations. An amended affidavit was filed alleging as an additionalviolation an arrest for possession of cocaine which occurred after theexpiration of his probation. The trial judge violated him on the basisof all the allegations. On appeal, the Court held that the defendantcould only be violated on the technical matters. He could not beviolated on the new charge since it occurred after the expirationof his probationary period even though the original affidavit wasfiled within the probationary period. Little v. State, 519 So.2d1139 (Fla. 2d DCA 1988).

e. Where the amended affidavit charging an offense committedduring the term of probation is filed after the expiration of theprobationary period the offense could not constitute a basis forrevocation. McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA1988).

f. Revocation was proper where an amended affidavit was filed after

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the expiration of the term, which included an allegation of thecommission of a new offense which had been included in the originalaffidavit filed before the expiration of the term. The judgment mustreflect that revocation was based on the original affidavit and the newcharge set forth in that document. Futch v. State, 605 So.2d 954 (Fla.4th DCA 1992).

g. “If an affidavit of violation is timely filed, and is succeeded by anuntimely affidavit which merely re-avers the allegationscontained in the former, the re-averred allegations may supportrevocation; however, probation may not be revoked on the basisof any new allegations contained only in the untimely affidavit.”Davis v. State, 623 So.2d 579 (Fla. 3d DCA 1993).

h. The trial court cannot revoke probation based on a new crimecommitted at, or near, the end of the term and alleged in anamended affidavit filed after the expiration of the term. State v.Hall, 641 So.2d 403 (Fla. 1994).

i. Charge of violation of probation alleged in an amended affidavitfiled after expiration of the probation term, which did not relateback to the charges alleged in the original affidavit filed prior tothe expiration of the probationary term, could not be the basis forrevocation of probation. Estevez v. State, 705 So.2d 972 (Fla. 3dDCA 1998). See also Ely v. State, 719 So.2d 11 (Fla. 2d DCA 1998).

j. Several amended affidavits were filed. “With respect to thetimeliness of allegations in the successive affidavits of violationfiled in this case, allegations of an affidavit of violation are timelyif the affidavit is filed before the expiration of the probation atissue or if the allegations in an affidavit filed after the expirationof the probationary period have also been alleged in an earlieraffidavit timely filed before the expiration of the probationaryperiod. (Citations omitted) However, a timely affidavit of violationcannot be amended after the expiration of the probationary period toadd charges not contained in an earlier, timely affidavit.’ ....Theviability of the allegations in the various affidavits of violation ofprobation is dependent on the existence of a warrant issued by thecourt before the expiration of Sepulveda’s probation as well aswhether any particular allegation at issue was made in an affidavitfiled before the expiration of Sepulveda’s probation.” Sepulveda v.State, 909 So.2d 568 (Fla. 2d DCA 2005).

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k. “An affidavit asserting violation of probation may not beamended outside the probationary period. See State v. Hall, 641So.2d 403 (Fla. 1994). The trial court lacks jurisdiction overalleged violations of probation asserted in an affidavit filed afterthe expiration of the probationary period.” Ely v. State, 719 So.2d11 (Fla. 2d DCA 1998).

l. The State filed an affidavit on a DUI probation alleging only a newcrime, and a county judge signed the warrant within the probationaryterm. About a year later the State filed an additional affidavit allegingmany other violations totally unrelated to the allegations of theoriginal affidavit. No judge ever signed a warrant on that secondaffidavit. Subsequently, the State withdrew or dismissed theallegation that the defendant violated his probation by committing thenew crime as alleged in the original affidavit. The defendant movedto quash the second affidavit because no warrant was issued andthe term of probation had expired. The trial judge denied themotion and the appellate court reversed. On appeal, the court madethese important points: (1) “‘appropriate steps’” must be taken torevoke or modify probation before the expiration of the term ofprobation or the court loses jurisdiction; (2) the steps require both thefiling of the affidavit and the signing of the warrant; (3) if a secondaffidavit is filed alleging grounds for revocation not related tothose in the first affidavit, the court’s jurisdiction over the secondaffidavit cannot be established by a “‘relation back’” theory; (4)while the statute provides that when a trial judge finds that thedefendant did not violate his/her probation all of the time that passedduring the tolling is restored, the same rule applies where the Statedismisses or withdraws a VOP charge and there is no courtordered dismissal. Stambaugh v. State, 891 So.2d 1136 (Fla. 4thDCA 2005).

14. §948.06 Fla. Stat. has been amended a couple of times so that subsection948.06 (1) and (2), in pertinent part, reads: “Upon the filing of anaffidavit alleging a violation of probation or community control andfollowing issuance of a warrant under s. 901.02, a warrantless arrestunder this section, or a notice to appear under this section, theprobationary period is tolled until the court enters a ruling on theviolation. Notwithstanding the tolling of probation, the court shall retainjurisdiction over the offender for any violation of the conditions of probationor community control that is alleged to have occurred during the tollingperiod. The probation officer is permitted to continue to supervise anyoffender who remains available to the officer for supervision until the

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supervision expires pursuant to the order of probation or communitycontrol or until the court revokes or terminates the probation orcommunity control, whichever comes first. ... Notwithstanding s. 775.082,when a period of probation or community control has been tolled, uponrevocation or modification of the probation or community control, the courtmay impose a sanction with a term that when combined with the amount ofsupervision served and tolled, exceeds the term permissible pursuant to s.775.082 for a term up to the amount of the tolled period supervision. If thecourt dismisses an affidavit alleging a violation of probation orcommunity control, the offender’s probation or community control shallcontinue as previously imposed, and the offender shall receive credit forall tolled time against his or her term of probation or communitycontrol.”

a. The court resolved a conflict as to retroactivity of the tollingprovision. “In this case, we consider whether a statutory amendmentrelating to the circumstances in which a probationary period istolled pending consideration of an alleged probation violationmay constitutionally be applied to a probationer who was placedon probation before the amendment became effective.... [W]eagree with the Fourth District that the application of the statutoryamendment to a probationer who was placed on probation before theamendment became effective did not violate the constitutionalprohibition of ex post facto laws.” Shenfeld v. State, 44 So.3d 96(Fla. 2010).

b. Defendant “contends that his term of probation had expired before theprobation violation proceeding began and that the trial court lackedjurisdiction over the violation proceeding.” This was a motion forpostconviction relief and the court found that the record did notconclusively refute the claim. “Section 948.06(1), Florida Statutes(2003), provides for retention of jurisdiction of a term of probationthat expires during the course of a probation revocation proceeding,stating that ‘[u]pon the filing of an affidavit alleging a violation ofprobation or community control and following issuance of awarrant under s. 901.02, the probationary period is tolled untilthe court enters a ruling on the violation.’ (Emphasis added.)Both the filing of an affidavit of violation and the issuance of anarrest warrant are required to toll the probationary period, andthe mere filing of the affidavit is insufficient. (Citations omitted)Under section 901.02(1), the warrant is issued when the judgesigns it. (Citations omitted)” Sepulveda v. State, 909 So.2d 568 (Fla.2d DCA 2005).

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c. The filing of the warrant prior to expiration of the term of probation,but the filing of the affidavit after the expiration of the term did notinvoke the jurisdiction of the court. Both must be filed before theexpiration of the term. Feagin v. State, 938 So.2d 623 (Fla. 2dDCA 2006). See also Collier v. State, 16 So.3d 340 (Fla. 4th DCA2009); Jean-Giles v. State, 921 So.2d 860 (Fla. 4th DCA 2006).

d. Before defendant’s probation ended the State filed an affidavitalleging a violation. The State filed an amended affidavit after theoriginal term of probation would have ended alleging a differentviolation. The State presented evidence only on the amendedaffidavit. Defendant filed a motion under rule 3.850. “He argues thatthe probationary period was not tolled and consequently the trialcourt lacked jurisdiction to revoke probation after the periodexpired.... It is well settled that after a term of probation hasexpired, a court has no jurisdiction to entertain a VOP based onoffenses occurring during the probation period unless the Stateissued an arrest warrant for the VOP before expiration.Stambaugh v. State, 891 So.2d 1136, 1139 (Fla. 4th DCA 2005).Here no warrant was ever issued on the alleged OkeechobeeCounty violation [set forth in the amendment], and thereforedefendant's probationary period was not tolled.” Ford v. State,994 So.2d 1244 (Fla. 4th DCA 2008). See also Collier v. State, 16So.3d 340 (Fla. 4th DCA 2009).

e. The defendant was charged with a violation of community controland her term was tolled during the pendency of the proceeding. “Ms.Hill’s insanity at the time of the alleged violations was conceded, thecircuit court concluded that she had not violated her communitycontrol. Consequently, the circuit court dismissed the affidavit ofviolation of community control.” The court modified her term so asto deny credit for the time the term was tolled as required by thestatute. “The circuit court reasoned that giving Ms. Hill credit forthe tolled time against her term of supervision after finding herinsane was contrary to the intent of section 948.06, FloridaStatutes (2001).... [i]f the court dismisses an affidavit alleging aviolation of ... community control, the offender’s ... communitycontrol shall continue as previously imposed, and the offender shallreceive credit for all tolled time against his or her term of[supervision]. Id.; see also Pupo-Diaz v. State, 966 So.2d 1010, 1012(Fla. 2d DCA 2007) (explaining that the trial court was required tocredit the defendant for all tolled time after dismissing the affidavit);

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Stambaugh v. State, 891 So.2d 1136, 1139 (Fla. 4th DCA 2005)(holding that a defendant shall receive credit for all tolled time afterthe State dismisses or withdraws a violation of probation charge).Thus section 948.06 nullifies the tolling mechanism when thecourt dismisses the affidavit. Stambaugh, 891 So.2d at 1139. Here,the finding that Ms. Hill was insane when she committed thealleged violations did not trump the statutory requirementconcerning the effect of the affidavit’s dismissal.” Hill v. State,987 So.2d 826 (Fla. 2d DCA 2008).

f. The court ruled that the trial judge had jurisdiction to revokeprobation where the defendant’s probationary period had been tolledfor 32 months when the court issued the first VOP arrest warrant(meaning it was signed by a magistrate). The court declined to ruleon whether other things had tolled the term of probation. Franklin v.State, 54 So.3d 622 (Fla. 1st DCA 2011).

g. In this case, the probation officer made a warrantless arrest uponlearning of a vop and filed a criminal arrest affidavit/notice to appear.There was a technical deficiency in that affidavit involving theabsence of a notary stamp, which was subsequently cured by thefiling of an affidavit of violation. The latter affidavit was filed outsidethe expiration of the original term of probation. “We hold that acriminal report affidavit may serve as an affidavit alleging aviolation of probation sufficient to toll a term of probation solong as its factual content is sufficient to fulfill this function. Wefurther hold that a technical deficiency in an affidavit of violationof probation can be cured by amendment, allowing the originalaffidavit to toll the term of probation from the time it wasoriginally filed.” Chadwick v. State, 118 So.3d 827 (Fla. 2d DCA2012).

h. The defendant was violated twice and each time his probationwas continued not extended. A third violation was filed for failureto report, but the failure to report allegedly occurred and the warrantfor the third violation was filed after the expiration of the originalterm of probation. The State argued that each of the first twoviolations resulted in a tolling that should have been added to theoriginal term of probation. The court rejected that position. “Here,the trial court thrice ordered that Defendant's probation wouldexpire on July 14, 2007-once when the plea was entered and twiceafter each violation. The violation process for the currentviolations was not set in motion prior to the expiration of that

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term of probation and, therefore, the trial court lackedjurisdiction to hear the violation allegations.” Gonzalez-Ramosv. State, 46 So.3d 67 (Fla. 5th DCA 2010). See also Cubero v. State,65 So.3d 642 (Fla. 2d DCA 2011).

15. “Where a defendant is incarcerated in another jurisdiction, aprobationary period from an unrelated sentence would be tolled since aprobationary term should not be allowed to expire simply because adefendant has decided to incur new prison time as a result of a separateand distinct offense.” The Court distinguished this situation from those incases where the sentences were on related cases. State v. Savage, 589 So.2d1016 (Fla. 5th DCA 1991). See also Brooks v. State, 762 So.2d 1011 (Fla.5th DCA 2000); Weeks v. State, 496 So.2d 942 (Fla. 2d DCA1986)(defendant is not under probation supervision when he/she isincarcerated in another jurisdiction).

16. While the defendant was on probation, he was incarcerated on an unrelatedcharge. During the period of incarceration the running of the term ofprobation was tolled. “‘It is well settled that a defendant cannot serve aprison term and be on probation simultaneously.’ Porter v. State, 585So.2d 399, 400 (Fla. 1st DCA 1991). To hold otherwise would beinconsistent with the rehabilitative concept of probation which presupposesthat the probationer is not in prison confinement. Id. Any term of probationpresumed to run when the defendant cannot be supervised would be a nullity.Id. As this court explained in State v. Savage, 589 So.2d 1016, 1018 (Fla. 5thDCA 1991): ‘Simple logic would seem to dictate that, where a defendantis incarcerated ..., a probationary period from an unrelated sentencewould be tolled since a probationary term should not be allowed toexpire simply because a defendant has decided to incur new prison timeas a result of a separate and distinct offense.’” Jones v. State, 964 So.2d167 (Fla. 5th DCA 2007).

17. The defendant was incarcerated for the first two years after communitycontrol was imposed. During that period, the community control wastolled. The defendant was accused of violating community control after it hadexpired. Because of the tolling, the violation did occur during the term ofprobation. Bradley v. State, 721 So.2d 775 (Fla. 5th DCA 1998).

18. The defendant was sentenced at different times, in different counties, bydifferent judges. In one case, he was sentenced to 30 months in prisonfollowed by two years probation. In the other case he was sentenced to a totalof nine years to run concurrent with the sentence in the other case. Thedefendant argued that his probation was over upon his release, otherwise it

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resulted in an illegal split intermittent sentence. The court held that theconviction on the other charge was like absconding in that thedefendant’s own conduct caused his inability to do the probation;therefore, the probation was tolled until his release and was not part ofan illegal split sentence. Porter v. State, 585 So.2d 399 (Fla. 1st DCA1991), rev, denied, 599 So.2d 657 (Fla. 1992).

19. “It is well established that a person cannot be sentenced to simultaneousprison and probation. (citations omitted) Consequently, although theincarcerative portion of his sentence in Case No. 93-202 may have expiredprior to his release from prison in May 1998, the probationary portion ofthat sentence was tolled while he remained in prison on other sentences,and it did not begin to run until appellant was released in May 1998.Therefore, his probationary sentence in Case no. 93-202 was in effect at thetime he violated probation.” Schurman v. State, 847 So.2d 569 (Fla. 1stDCA 2003).

20. The defendant was sentenced on the primary offense to ten years in thecustody of DOC. The time was to be suspended afer six years and theremaining four years to be served on probation. That was a true splitsentence. At the time of this offense, the defendant was on parole for anunrelated charge. His parole was revoked and he continued that sentence inthe custody of DOC. That sentence was to be served concurrently with thesplit sentence imposed in this case. After being released back to parole, thedefendant began serving his probation in this case. The defendant’s probationwas violated. He argued that the court had no jurisdiction because hecompleted his split sentence while incarcerated before he began his probation.On appeal, the court ruled that he did not complete his split sentence becausehe never served his probation. Furthermore, “because he was incarceratedon another offense at the time he was released from the custodial portionof his sentence in this case, Brooks’ probation was tolled until he wasparoled in his Seminole County case.” Brooks v. State, 762 So.2d 1011(Fla. 5th DCA 2000).

21. The defendant was not entitled to credit against an additional term ofprobation for time spent in jail on another charge, awaiting resolution ofthe violation of probation. His incarceration tolled the running ofprobation because he was not available for probationary supervision.This case dealt with an individual who was incarcerated in anotherjurisdiction. Horton v. State, 700 So.2d 376 (Fla. 1997).

22. The trial judge has the power to revoke probation after an appeal where theviolation was committed during the pendency of the appeal even though

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the probation was stayed. Loeb v. State, 387 So.2d 433 (Fla. 3d DCA 1980).

23. The defendant was placed on probation for six months on June 6, 1990. OnDecember 4, 1990 the court issued a violation warrant. The word ‘month’as used in §948.04 “means a calendar month which is the period betweena day of a given month to the corresponding day of the next month.”Thus the probation expired on December 5, 1990 and the court had juris-diction. Peterson v. State, 16 FLW C145 (Fla. 5th Cir. Sept. 13, 1991).

24. It is unlawful to place a defendant on probation for more than six months ona second degree misdemeanor. Where the affidavit of violation was filedmore than six months after the defendant was placed on probation, thecourt lacked jurisdiction. Purvis v. Lindsey, 587 So.2d 638 (Fla. 4th DCA1991). See also Smith v. State, 484 So.2d 581 (Fla.1986); Darley v. State,751 So.2d 737 (Fla. 1st DCA 2000)(one year probation on second degreecriminal mischief was illegal).

25. In an en banc decision the court receded from its decision in S.F. v. State, 799So.2d 330 (Fla. 2d DCA 2001), holding that the maximum term of probationon a second degree misdemeanor is 60 days. “In S.F. we relied, in part, on adecision of the First District which appeared to support such a conclusion.See J.P.C. v. State, 773 So.2d 112 (Fla. 1st DCA 2000). However, ourreliance on J.P.C. was misplaced. “The effective statutory provisiongoverning the powers of disposition in delinquency proceedings, in bothS.F. and the present case, allows for the imposition of a six-month termof supervision for a second-degree misdemeanor. See §985.231(1)(a)(1)(a), Fla. Stat.” C.T. v. State, 901 So.2d 928 (Fla. 2d DCA2005).

26. “[T]he six month concurrent sentence imposed upon the defendant’sviolation of his probation for misdemeanor DUI is vacated because theviolation proceedings were begun more than the one year misdemeanorterm limit after the probation was imposed.” Perez v. State, 799 So.2d364 (Fla. 3d DCA 2001).

27. The defendant had multiple prior revocations and argued that the court lackedjurisdiction to revoke community control because two years is the maximumperiod which may be imposed. The trial judge had jurisdiction in each of theinstances of revocation because the term of community control had notexpired before the violation and the term was within the statutorymaximum for the offense. Ulmer v. State, 619 So.2d 443 (Fla. 2d DCA1993).

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28. A probationary term begins to run when the defendant is released fromincarceration § 948.01. On a violation of probation the appellate court couldnot determine whether the affidavit of violation was filed during the term ofprobation so that the trial judge had jurisdiction because there wasinsufficient evidence as to when the defendant was released. Thus, the courtremanded to allow the trial judge to make that decision. Reatz v. State, 677So.2d 963 (Fla. 3d DCA 1996).

29. On February 9, 1990 the defendant was placed on probation for five years ona third degree felony. On February 3, 1993, an affidavit of violation was filedand the defendant was arrested. On April 8, 1993 he pled guilty and the courtimposed one year community control and one year probation. On March 24,1994, a second affidavit of violation was filed and the defendant was arrested.At this point the defendant had been on community control or probationfor over four years. On July 22, 1994, the trial court reimposed two yearsprobation. On March 29, 1995 a third affidavit of violation was filed. At thispoint the defendant had served over five years of community control orprobation. In May of 1995 the fourth and fifth affidavits were filed. OnSeptember 21, 1995 the defendant pled guilty and was sentenced to threeyears incarceration. On appeal the court said: “That sentence is illegalbecause the appellant had served the statutory maximum term prior tothe filing of the third affidavit.” Thus, the trial court’s jurisdictionexpired before the third affidavit was filed and the affidavit should havebeen dismissed. Fellman v. State, 673 So.2d 155 (Fla. 5th DCA 1996).

30. Where the court extends probation beyond the statutory maximum periodof incarceration because the defendant has not paid restitution, the courtdoes not have jurisdiction to revoke and extend probation on anotherviolation. Francois v. State, 695 So.2d 695 (Fla. 1997).

31. When the defendant asks the court to extend probation so that she canpay restitution and the extension exceeds the statutory maximum periodof incarceration, the trial court does not have jurisdiction to enter ajudgment for the restitution during the excess period. Migliano v. State,700 So.2d 131 (Fla. 4th DCA 1997).

32. “We hold that where a trial court imposes a probationary period withspecial conditions and further offers early termination of that probationupon successful completion of all such conditions, the early terminationprovision is not self-executing. If and when the special conditions arecompleted before the natural expiration of the probationary sentence, eitherthe defendant or the Department of Corrections must advise the trial courtthat all such conditions have been satisfied and request early termination.

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Once the court has confirmed that all special conditions have been fulfilledit will then terminate the probation.” Hepburn v. State, 780 So.2d 326 (Fla.3d DCA 2001).

33. Where as part of a plea agreement, probation is to terminate after 5 years andno conditions for early termination are stated, the court lacks jurisdiction after5 years to revoke probation. “Here the agreement and the pronouncementare unequivocal that probation terminates after 5 years.” There is nocondition that it terminates early if all conditions have been complete as inHepburn. Gipson v. State, 997 So.2d 1276 (Fla. 4th DCA 2009).

34. The court relied on Gipson. The court made it a condition of probation thatwhen the defendant moved to New Jersey and called her P.O. from there herprobation would terminate. The probation officer added the requirement thatthe defendant get a N.J. identification card. The defendant admitted threeviolations and the court revoked probation for just one of the violations. Thecourt reversed. “Ms. Mathews argues that the trial court lacked jurisdictionto revoke her probation because it had terminated when she called herprobation officer from New Jersey.... Ms. Mathews did not waive theargument by admitting to violating her probation.... The condition’s plainlanguage required Ms. Mathews to do two things—travel to New Jersey andcall the probation officer from there. If Ms. Mathews’ statements are true,then she complied fully with both of these court-imposed requirements andher probation instantly terminated upon their completion.... The trial courtis divested of jurisdiction over a probationer once the term of probationexpires. (Citation omitted) If Ms. Mathews called from New Jersey, herprobation terminated at that time and she had no legal responsibility tocomply with her probation officer’s subsequent demands regarding theNew Jersey identification card. Consequently, we reverse the orders onappeal and remand for a new violation of probation hearing. On remand, thetrial court shall first take testimony to determine whether Ms. Mathewstraveled to New Jersey and called her probation officer from there. If the trialcourt determines that she complied with both those requirements, it shalldismiss the affidavit of violation of probation for lack of jurisdiction.”Mathews v. State, 58 So.3d 929 (Fla. 2d DCA 2011).

35. The defendant was on six months of community control followed by 12months of drug probation. An affidavit of violation of community control wasfiled and her probation was revoked. “The trial court re-sentenced Kimballto two years in prison followed by three years of probation. Kimball contendsthat because she did not receive credit for time served on community control,the sentence of two years in prison followed by three years of probationexceeds the five-year statutory maximum permitted for the third-degree

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felony offenses. The state concedes the sentence was improper, butcontends that because Kimball had absconded from supervision, theprobationary period was tolled until Kimball was returned tosupervision. We agree with both contentions. Upon revocation ofprobation, credit must be given for time previously served on probationtoward any newly-imposed probationary term for the same offense toinsure that the total term of probation does not exceed the statutorymaximum for that offense. (Citations omitted) However, when aprobationer absconds from supervision, the probationary period is tolleduntil the probationer is returned to supervision. (Citation omitted)Accordingly, the sentence is vacated, and the case is remanded to the trialcourt for a determination of the proper amount of credit Kimball should begiven for time served on community control.” Kimball v. State, 890 So.2d495 (Fla. 5th DCA 2004).

36. The defendant appealed the revocation of probation on a misdemeanor on thegrounds that the court did not have jurisdiction. “[B]ased on the record onappeal, it appears that the trial court lacked jurisdiction to revoke theappellant’s probation for the misdemeanor charge. See Aponte v. State, 896So.2d 836 (Fla. 1st DCA 2005). Although the state suggests that theappellant’s probationary term may have been tolled while the appellantwas incarcerated on an unrelated charge and absconded, § 948.06(1),Fla. Stat. (2001), an evidentiary hearing is required to establish thatdetermination.” Owens v. State, 911 So.2d 181 (Fla. 1st DCA 2005).

37. “Notwithstanding this subsection, a court that has ordered restitutionfor a misdemeanor offense shall retain jurisdiction for the purpose ofenforcing the restitution order for any period, not to exceed 5 years, thatis pronounced by the court at the time restitution is ordered.” §775.089(3)(c) Fla. Stat.

38. Where the defendant was sentenced to a fifteen-year prison term followed bya fifteen-year probation term on a second degree felony, the sentence wasillegal because it exceeded the statutory maximum. Thus, the court did nothave jurisdiction to impose an additional sanction for a violation ofprobation. This was true even though the defendant agreed to the illegalsentence as part of a plea bargain. Gonzales v. State, 816 So.2d 720 (Fla.5th DCA 2002). See also Manning v. State, 961 So.2d 1135 (Fla. 2d DCA2007).

39. Where the defendant served the maximum commitment permitted by lawon a second degree misdemeanor, the trial court could not enter anyorder relating to that offense. N.P.L. v. State, 819 So.2d 254 (Fla. 1st DCA

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2002).

40. “Yevchak correctly contends that the trial court did not have jurisdiction torevoke his probation and sentence him further ... because he had alreadyserved in excess of five years on the third-degree felony.” Yevchak v.State, 952 So.2d 1286 (Fla. 2d DCA 2007).

41. “On July 30, 1999, the appellant was sentenced as a youthful offender to fouryears’ incarceration followed by two years' probation. On April 29, 2005, theappellant’s probation was extended by six months due to a technicalviolation. On September 22, 2005, an affidavit of violation of probation wasfiled and the appellant’s probation was revoked on October 24, 2005,resulting in a prison sentence. When imposing a sentence for a violation ofprobation, a court must provide credit for time previously served on probationwhen necessary to ensure that the total time served does not exceed thestatutory maximum for the offense at issue.... Furthermore, when sentencingan accused as a youthful offender, a court may not impose a split sentencethat exceeds six years in length. See § 958.04(2)(c), Fla. Stat. (1999). Theappellant was originally sentenced to a total of six years’ incarceration andprobation combined in July of 1999. As such, his six years were completedin July of 2005. Accordingly, the April 2005 extension of his probation bysix months may have been illegal as it lengthened his sentence beyond thesix-year limitation imposed by the Youthful Offender Act. Thus, whenthe affidavit of violation was filed on September 22, 2005, it wouldappear that the trial court lacked subject matter jurisdiction to revokethe appellant’s probation.” Smith v. State, 941 So.2d 565 (Fla. 1st DCA2006).

42. The trial judge ordered the defendant to perform 150 hours of public serviceas part of a sentence on a first degree misdemeanor. Nineteen months laterthe defendant had not done any hour. The trial judge ordered him to showcause why he should not be held in contempt. The trial judge denied a motionto dismiss and the circuit court denied a petition for writ of prohibition. Thedistrict court granted a petition for certiorari because the trial judge lostjurisdiction after a year. § 948.01(4) provides that court ordered publicservice may not exceed the length of “‘the sentence that could have beenimposed if the offender had been committed for the offense or a period notto exceed 2 years, which is less.’” Clearly, the court lost jurisdiction afterone year. The district court also suggested that this should have been madea condition of probation. Rivera v. State, 939 So.2d 116 (Fla. 3d DCA2006).

43. The trial judge ordered the defendant to perform 150 hours of public service

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“Appellant argues that the trial court lacked jurisdiction to revoke hisprobation because the trial court, in a previous and unappealedmodification order, improperly extended probation by twelve (12)months, but not beyond the applicable maximum sentence.... [A] trialcourt has subject matter jurisdiction over a probationer for the term ofprobation. See§ 948.06(1)(a).... Appellant’s probation did not expire untilDecember 6, 2004. The affidavit of violation was filed on October 5, 2004.Once a violation affidavit is filed, the probationary period is tolled untilthe court enters a ruling on the violation. See§ 948.06(1)(f), Fla. Stat.(2004). Because the affidavit was filed while appellant was still on probation,the trial court maintained jurisdiction.” Battles v. State, 919 So.2d 621 (Fla.1st DCA 2006).

44. The court no longer had jurisdiction because the extended probationaryterm had expired when the affidavit was filed. The fact that the defendantcontinued to report after probation expired did not change the result. Jonesv. State, 954 So.2d 675 (Fla. 4th DCA 2007).

45. The court did not have jurisdiction where the affidavit on the fifth violationwas filed after the term of probation had expired on the fourth violation. Thejudge had merely continued the term of probation on the fourth violation. The“probationary term could have been longer than five years, but it endedin June 2006 because the trial court continued his probationary terminstead of extending it.” Vidaurre v. State, 8 So.3d 1206 (Fla. 2d DCA2009). See also Gonzalez-Ramos v. State, 46 So.3d 67 (Fla. 3d DCA 2010).

46. “Nadzo also contends that the trial court lacked jurisdiction to revoke hisprobation and to sentence him for the DUI offense in case number06-CF-015497 because he had already served the statutory maximum for thatoffense. When the court imposed the suspended sentence of fifty-nine monthsin prison and twenty-four months of probation in March 2007, it exceededthe statutory maximum of one year for a first-degree misdemeanor. See§§ 316.193(6)(a), 775.082(4)(a), Fla. Stat. (2005). Therefore, Nadzo wasillegally on probation and the court lacked jurisdiction to revoke hisprobation in January 2009 and sentence him on the DUI charge.” Nadzov. State, 24 So.3d 690 (Fla. 2d DCA 2009).

IV. Procedures for violations.

A. Proceedings: statutory language. §948.06, Fla. Stat.

1. Arrest.

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a. “Whenever within the period of probation or community control thereare reasonable grounds to believe that a probationer or offender incommunity control has violated his or her probation or communitycontrol in a material respect, any law enforcement officer who isaware of the probationary or community control status of theprobationer or offender in community control or any parole orprobation supervisor may arrest or request any county ormunicipal law enforcement officer to arrest such probationer oroffender without warrant wherever found and return him or herto the court granting such probation or community control.”Florida Statutes, Section 948.06(1)(a). See also Parsons v. State,16 So.3d 317 (Fla. 2d DCA 2009)(recognizes that statute authorizesany law enforcement officer who is aware of probationary status toarrest the person without a warrant).

b. “Any committing trial court judge may issue a warrant, upon thefacts being made known to him or her by affidavit of one havingknowledge of such facts, for the arrest of the probationer or offender,returnable forthwith before the court granting such probation orcommunity control. In lieu of issuing a warrant for arrest, thecommitting trial court judge may issue a notice to appear if theprobationer or offender in community control has never beenconvicted of committing, and is not currently alleged to havecommitted, a qualifying offense as defined in this section.”Florida Statutes, Section 948.06(1)(b).

c. “If a judge finds reasonable grounds to believe that a probationeror an offender has violated his or her probation or communitycontrol in a material respect by committing a new violation oflaw, the judge may issue a warrant for the arrest of the person.”Florida Statutes, Section 948.06(1) (c).

d. “Any parole or probation supervisor, any officer authorized to servecriminal process, or any peace officer of this state is authorizedto serve and execute such warrant. Any parole or probationsupervisor is authorized to serve such notice to appear.” FloridaStatutes, Section 948.06(1)(e).

2. First appearance where violation is a new offense. Florida Statutes,Section 948.06(1)(d).

a. “At a first appearance hearing for an offender who has been arrestedfor violating his or her probation or community control in a material

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respect by committing a new violation of law the court shall informthe person of the violation.”

b. The court “May order the person to be taken before the court thatgranted the probation or community control if the person admitsthe violation.”

c. “If the probationer or offender does not admit the violation at thefirst appearance hearing, the court: a. May commit theprobationer or offender or may release the person with orwithout bail to await further hearing, notwithstanding s. 907.041,relating to pretrial detention and release; or b. May order theprobationer or offender to be brought before the court thatgranted the probation or community control.”

d. “In determining whether to require or set the amount of bail, andnotwithstanding s. 907.041, relating to pretrial detention and release,the court may consider whether the probationer or offender ismore likely than not to receive a prison sanction for theviolation.”

e. “This paragraph does not apply to a probationer or offender oncommunity control who is subject to the hearing requirementsunder subsection (4) or paragraph (8)(e).”

3. Notification letter. Florida Statutes, Section 948.06(1)(g).

a. “The chief judge of each judicial circuit may direct thedepartment to use a notification letter of a technical violation inappropriate cases in lieu of a violation report, affidavit, andwarrant when the alleged violation is not a new felony ormisdemeanor offense.”

b. “Such direction must be in writing and must specify the types ofspecific violations which are to be reported by a notification letter ofa technical violation, any exceptions to those violations, and therequired process for submission. At the direction of the chief judge,the department shall send the notification letter of a technicalviolation to the court.”

4. Continued supervision.

a. “Notwithstanding the tolling of probation as provided in this

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subsection, the court shall retain jurisdiction over the offenderfor any violation of the conditions of probation or communitycontrol that is alleged to have occurred during the tollingperiod.” Florida Statutes, Section 948.06(1)(f).

b. “The probation officer is permitted to continue to supervise anyoffender who remains available to the officer for supervisionuntil the supervision expires pursuant to the order of probationor community control or until the court revokes or terminates theprobation or community control, whichever comes first.” FloridaStatutes, Section 948.06(1)(f).

c. “If the court dismisses an affidavit alleging a violation ofprobation or community control, the offender’s probation orcommunity control shall continue as previously imposed, and theoffender shall receive credit for all tolled time against his or herterm of probation or community control.” Florida Statutes,Section 948.06(2)(g).

5. Violation admitted.

a. “The court, upon the probationer or offender being brought before it,shall advise him or her of such charge of violation and, if suchcharge is admitted to be true, may forthwith revoke, modify, orcontinue the probation or community control or place theprobationer into a community control program.” FloridaStatutes, Section 948.06(2)(a).

b. “If probation or community control is revoked, the court shalladjudge the probationer or offender guilty of the offense chargedand proven or admitted, unless he or she has previously beenadjudged guilty, and impose any sentence which it might haveoriginally imposed before placing the probationer on probationor the offender into community control.” Florida Statutes,Section 948.06(2)(b).

6. Violation not admitted.

a. “If such violation of probation or community control is not admittedby the probationer or offender, the court may commit him or her orrelease him or her with or without bail to await further hearing,or it may dismiss the charge of probation or community controlviolation.” Florida Statutes, Section 948.06(2)(c).

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b. “ If such charge is not at that time admitted by the probationer oroffender and if it is not dismissed, the court, as soon as may bepracticable, shall give the probationer or offender an opportunityto be fully heard on his or her behalf in person or by counsel.”Florida Statutes, Section 948.06(2)(d).

c. “After such hearing, the court may revoke, modify, or continuethe probation or community control or place the probationer intocommunity control.” Florida Statutes, Section 948.06(2)(e).

d. “If such probation or community control is revoked, the court shalladjudge the probationer or offender guilty of the offense chargedand proven or admitted, unless he or she has previously beenadjudged guilty, and impose any sentence which it might haveoriginally imposed before placing the probationer or offender onprobation or into community control.” Florida Statutes, Section948.06(2)(e).

e. “Notwithstanding s. 775.082, when a period of probation orcommunity control has been tolled, upon revocation or modificationof the probation or community control, the court may impose asanction with a term that when combined with the amount ofsupervision served and tolled, exceeds the term permissible pursuantto s. 775.082 for a term up to the amount of the tolled period ofsupervision.” Florida Statutes, Section 948.06(2)(f).

7. Proceedings in place where arrested. Florida Statutes, Section 948.06(4).

a. “Notwithstanding any other provision of this section, a probationer oran offender in community control who is arrested for violating his orher probation or community control in a material respect may betaken before the court in the county or circuit in which theprobationer or offender was arrested.”

b. “That court shall advise him or her of such charge of a violation and,if such charge is admitted, shall cause him or her to be brought beforethe court which granted the probation or community control.”

c. “If the violation is not admitted by the probationer or offender, thecourt may commit him or her or release him or her with orwithout bail to await further hearing.”

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d. “The court, as soon as is practicable, shall give the probationeror offender an opportunity to be fully heard on his or her behalfin person or by counsel.”

(1) “After the hearing, the court shall make findings of fact andforward the findings to the court which granted the probationor community control and to the probationer or offender or hisor her attorney. “

(2) “The findings of fact by the hearing court are binding onthe court which granted the probation or communitycontrol.”

(3) “Upon the probationer or offender being brought before it, thecourt which granted the probation or community control mayrevoke, modify, or continue the probation or communitycontrol or may place the probationer into community controlas provided in this section.”

(4) However, there are restrictions on certain violent offendersunder the Anti-Murder Act, which are discussed below insection 7.

8. Pretrial release for sexual offenders and predators. Florida Statutes,Section 948.06(4).

a. “[I]f the probationer or offender is under supervision for any criminaloffense proscribed in chapter 794, s. 800.04(4), (5), (6), s. 827.071,or s. 847.0145, or is a registered sexual predator or a registered sexualoffender, or is under supervision for a criminal offense for which heor she would meet the registration criteria in s. 775.21, s. 943.0435,or s. 944.607 but for the effective date of those sections, the courtmust make a finding that the probationer or offender is not adanger to the public prior to release with or without bail.”

b. “In determining the danger posed by the offender’s or probationer’srelease, the court may consider [these factors]:

(1) the nature and circumstances of the violation and any newoffenses charged;

(2) the offender’s or probationer’s past and present conduct,including convictions of crimes;

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(3) any record of arrests without conviction for crimes involvingviolence or sexual crimes;

(4) any other evidence of allegations of unlawful sexual conductor the use of violence by the offender or probationer;

(5) the offender’s or probationer’s family ties, length of residencein the community, employment history, and mental condition;

(6) his or her history and conduct during the probation orcommunity control supervision from which the violationarises and any other previous supervisions, includingdisciplinary records of previous incarcerations;

(7) the likelihood that the offender or probationer will engageagain in a criminal course of conduct; the weight of theevidence against the offender or probationer;

(8) any other facts the court considers relevant.”

c. The Supreme Court adopted an amendment to the criminal rulesimplementing the foregoing provision. It provides for a hearing todetermine whether the defendant is a danger to the public to beheld no sooner than 24 hours after arrest. That time may beextended at the request of the accused or at the request of theState upon a showing of good cause. Otherwise, the rule essentiallycontains the same language as the statute. In Re Amendments toFlorida Rule of Criminal Procedure, 959 So.2d 1187 (Fla. 2007).

9. Pretrial release for certain violent offenders. (Anti-murder act).

a. “However, the probationer or offender shall not be released and shallnot be admitted to bail, but shall be brought before the court thatgranted the probation or community control if any violation of felonyprobation or community control other than a failure to pay costs orfines or make restitution payments is alleged to have beencommitted by: (a) A violent felony offender of special concern, asdefined in this section; (b) A person who is on felony probation orcommunity control for any offense committed on or after the effectivedate of this act and who is arrested for a qualifying offense as definedin this section; or (c) A person who is on felony probation orcommunity control and has previously been found by a court to be a

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habitual violent felony offender as defined in s. 775.084(1)(b), athree-time violent felony offender as defined in s. 775.084(1)(c), ora sexual predator under s. 775.21, and who is arrested for committinga qualifying offense as defined in this section on or after the effectivedate of this act.” Florida Statutes, Section 948.06(4).

b. The foregoing restrictions do not apply where the alleged violation offelony probation or community control is based solely on theprobationer or offender’s failure to pay costs or fines or makerestitution payments. Florida Statutes, Section 948.06(4).

c. “In addition to complying with the provisions of subsections (1)-(7),this subsection provides further requirements regarding a probationeror offender in community control who is a violent felony offenderof special concern. The provisions of this subsection shall controlover any conflicting provisions in subsections (1)-(7). For purposesof this subsection, the term “convicted” means a determination ofguilt which is the result of a trial or the entry of a plea of guilty ornolo contendere, regardless of whether adjudication is withheld.” Florida Statutes, Section 948.06(8)(a).

d. “For purposes of this section [948.06(8)] and ss. 903.0351, 948.064,and 921.0024, the term ‘violent felony offender of special concern’means a person who is on:

(1) Felony probation or community control related to thecommission of a qualifying offense committed on or after theeffective date of this act;

(2) Felony probation or community control for any offensecommitted on or after the effective date of this act, and haspreviously been convicted of a qualifying offense;

(3) Felony probation or community control for any offensecommitted on or after the effective date of this act, and isfound to have violated that probation or community controlby committing a qualifying offense;

(4) Felony probation or community control and has previouslybeen found by a court to be a habitual violent felony offenderas defined in s. 775.084(1)(b) and has committed a qualifyingoffense on or after the effective date of this act;

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(5) Felony probation or community control and has previouslybeen found by a court to be a three-time violent felonyoffender as defined in s. 775.084(1)(c) and has committed aqualifying offense on or after the effective date of this act; or

(6) Felony probation or community control and has previouslybeen found by a court to be a sexual predator under s. 775.21and has committed a qualifying offense on or after theeffective date of this act.” Florida Statutes, 948.06(8)(b).

e. “For purposes of this section [948.06(8)], the term ‘qualifyingoffense’ means any of the following:

(1) Kidnapping or attempted kidnapping under s. 787.01, falseimprisonment of a child under the age of 13 under s.787.02(3), or luring or enticing a child under s. 787.025(2)(b)or (c).

(2) Murder or attempted murder under s. 782.04, attemptedfelony murder under s. 782.051, or manslaughter under s.782.07.

(3) Aggravated battery or attempted aggravated battery under s.784.045.

(4) Sexual battery or attempted sexual battery under s.794.011(2), (3), (4), or (8)(b) or (c).

(5) Lewd or lascivious battery or attempted lewd or lasciviousbattery under s. 800.04(4), lewd or lascivious molestationunder s. 800.04(5)(b) or (c)2., lewd or lascivious conductunder s. 800.04(6)(b), or lewd or lascivious exhibition unders. 800.04(7)(c).

(6) Robbery or attempted robbery under s. 812.13, carjacking orattempted carjacking under s. 812.133, or home invasionrobbery or attempted home invasion robbery under s. 812.135.

(7) Lewd or lascivious offense upon or in the presence of anelderly or disabled person or attempted lewd or lasciviousoffense upon or in the presence of an elderly or disabledperson under s. 825.1025.

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(8) Sexual performance by a child or attempted sexualperformance by a child under s. 827.071.

(9) Computer pornography under s. 847.0135(2) or (3),transmission of child pornography under s. 847.0137, orselling or buying of minors under s. 847.0145.

(10) Poisoning food or water under s. 859.01.

(11) Abuse of a dead human body under s. 872.06.

(12) Any burglary offense or attempted burglary offense that iseither a first-degree felony or second-degree felony under s.810.02(2) or (3).

(13) Arson or attempted arson under s. 806.01(1).

(14) Aggravated assault under s. 784.021.

(15) Aggravated stalking under s. 784.048(3), (4), (5), or (7).

(16) Aircraft piracy under s. 860.16.

(17) Unlawful throwing, placing, or discharging of a destructivedevice or bomb under s. 790.161(2), (3), or (4).

(18) Treason under s. 876.32.

(19) Any offense committed in another jurisdiction which wouldbe an offense listed in this paragraph if that offense had beencommitted in this state.” Florida Statutes, 948.06(8)(c).

f. “In the case of an alleged violation of probation or community controlother than a failure to pay costs, fines, or restitution, the followingindividuals shall remain in custody pending the resolution of theprobation or community control violation:

(1) A violent felony offender of special concern, as defined inthis section;

(2) A person who is on felony probation or community controlfor any offense committed on or after the effective date of thisact and who is arrested for a qualifying offense as defined in

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this section; or

(3) A person who is on felony probation or community controland has previously been found by a court to be a habitualviolent felony offender as defined in s. 775.084(1)(b), athree-time violent felony offender as defined in s.775.084(1)(c), or a sexual predator under s. 775.21, and whois arrested for committing a qualifying offense as defined inthis section on or after the effective date of this act.” FloridaStatutes, 948.06(8)(d).

g. “The court shall not dismiss the probation or community controlviolation warrant pending against an offender enumerated in thisparagraph without holding a recorded violation-of-probation hearingat which both the state and the offender are represented.” FloridaStatutes, 948.06(8)(d).

h. “If the court, after conducting the hearing required by paragraph (d),determines that a violent felony offender of special concern hascommitted a violation of probation or community control other thana failure to pay costs, fines, or restitution, the court shall:

(1) Make written findings as to whether or not the violent felonyoffender of special concern poses a danger to the community.In determining the danger to the community posed by theoffender's release, the court shall base its findings on one ormore of the following:

(a) The nature and circumstances of the violation and anynew offenses charged.

(b) The offender’s present conduct, including criminalconvictions.

(c) The offender’s amenability to nonincarcerativesanctions based on his or her history and conductduring the probation or community controlsupervision from which the violation hearing arisesand any other previous supervisions, includingdisciplinary records of previous incarcerations.

(d) The weight of the evidence against the offender.

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(e) Any other facts the court considers relevant.

(2) Decide whether to revoke the probation or communitycontrol.

(a) If the court has found that a violent felony offender ofspecial concern poses a danger to the community, thecourt shall revoke probation and shall sentence theoffender up to the statutory maximum, or longer ifpermitted by law.

(b) If the court has found that a violent felony offender ofspecial concern does not pose a danger to thecommunity, the court may revoke, modify, orcontinue the probation or community control or mayplace the probationer into community control asprovided in this section.” Florida Statutes,948.06(8)(e).

B. Nature of proceeding.

1. “A probation violation hearing is not a prosecution for a crime; it is aviolation of a court order hearing.” State v. Woodland, 602 So.2d 554(Fla. 4th DCA 1992). See also Alvarez v. State, 827 So.2d 269 (Fla. 4thDCA 2002), rev. denied, 845 So.2d 887 (Fla. 2003).

2. “We find that revocation of probation or community control proceedingsare not criminal prosecutions and that Crawford does not apply torevocation proceedings.” Peters v. State, 984 So.2d 1227 (Fla. 2008).

3. “At a probation revocation hearing, the court must advise the probationerof the charges, and then if admitted, the court may revoke the probation.§948.06(1), Fla. Stat. (1987). A probation revocation hearing does nothave to meet the strict requirements of a criminal trial. It is sufficient ifthe [defendant] is advised of the charges, evidence is presented, and theprobationer has an opportunity to present his position.” Donley v. State,557 So.2d 943 (Fla. 2d DCA 1990). See also Hartman v. State, 557 So.2d961 (Fla. 4th DCA 1990).

4. At a hearing to determine when the defendant’s probation began to run forpurposes of jurisdiction on a violation, “‘[t]he trial judge is not requiredto follow strict rules of evidence and may consider letters, affidavits, andother material that would not be inadmissible in a trial.’ Singletary v.

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State, 290 So.2d 116, 121 (Fla. 4th DCA), cert dismissed, 293 So.2d 361(Fla. 1974).” Reatz v. State, 677 So.2d 963 (Fla. 3d DCA 1996).

5. The trial judge dismissed a VOP and discharged a juvenile’s probation onmisdemeanor offenses when the judge learned that the juvenile had beensentenced to ten years in prison on unrelated charges. The State appealed.“We find no abuse of discretion in the circuit court’s decision to dismissthe charge of violation of probation and to discharge Mr. Kern from hisprobation. See § 948.06(2)(d), Fla. Stat. (2006); State v. Harrison, 589So.2d 317, 318 (Fla. 5th DCA 1991) (discussing trial court’s ‘almostunlimited authority’ in addressing violations of probation).” State v.Kern, 996 So.2d 263 (Fla. 2d DCA 2008).

C. Sufficiency of affidavit.

1. It was error to revoke the defendant’s probation where neither theaffidavit nor a written order specified which condition he was supposedto have violated even though the evidence was sufficient to establish aviolation. Wynn v. State, 591 So.2d 964 (Fla. 2d DCA 1991).

2. “‘An affidavit upon which a permanent revocation is to be based mustallege the basic facts concerning the alleged violation, such as its nature,time, and place of occurrence.’ Hines, 358 So.2d at 185. Thus, we holdthat the state’s failure to allege appellant committed a trespassconstituted fundamental error.” Palmer v. State, 603 So.2d 535 (Fla. 4thDCA 1992). See also Critsley v. State, 846 So.2d 1255 (Fla. 4th DCA 2003).

3. The defendant was accused of violating his probation by being arrested forDUI. The defendant objected to any evidence other than the fact that thedefendant had been arrested. The trial judge allowed other evidence andfound that the defendant violated his probation by committing the DUI. Onappeal, the court receded from its decision in Palmer and affirmed.“Defendant expressed no doubt at the VOP hearing as to what he wasaccused of doing to warrant revocation of his probation. While the VOPcharging document might be deemed technically deficient in failing tostate that he drove an automobile on the public highways of Floridawhile under the influence of alcohol or drugs in violation of law, it didstate that he was arrested for that offense. As we have already said, thisis not a case in which defendant was charged with being arrested for oneoffense while his probation was revoked for another offense notmentioned in the VOP charge. The VOP charge was supported bytestimony that he was in fact convicted of precisely the offense stated inthe VOP charge as the basis for the arrest. Any error in the charging

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document was indubitably harmless. We therefore recede from Palmerand affirm defendant’s revocation of probation.” Langbaum v. State,799 So.2d 391 (Fla. 4th DCA 2001).

4. It was improper to revoke probation based on an alleged violation that thestate added at the time of the hearing by amendment of the warrant, but notby amendment of the affidavit. Joseph v. State, 615 So.2d 833 (Fla. 4thDCA 1993). See also Nelson v. State, 753 So.2d 658 (Fla. 4th DCA 2000).

5. It is improper to revoke probation based solely on a new charge notalleged in the affidavit. Mordica v. State, 618 So.2d 301 (Fla. 1st DCA1993). See also Dubois v. State, 932 So.2d 298 (Fla. 2d DCA2006)(defendant charged with violating probation by giving a false nameto officers could not be violated for driving on a suspended license);Grimsley v. State, 830 So.2d 118 (Fla. 2d DCA 2002)(probation could notbe revoked based on failure to report where that was not alleged in theaffidavit); N.L. v. State, 825 So.2d 509 (Fla. 1st DCA 2002); Johnson v.State, 811 So.2d 749 (Fla. 2d DCA 2002)(community control could not berevoked because defendant was not at home at a certain time, since thatwas not alleged in the affidavit, but the State could file an appropriateaffidavit); Nelson v. State, 802 So.2d 470 (Fla. 2d DCA 2001); Parminterv. State, 762 So.2d 966 (Fla. 2d DCA 2000)(The defendant could not beconvicted of a violation based on a cocaine charge not alleged in the affidavit,but the State could file an appropriate affidavit). See also Manis v. State, 30So.3d 586 (Fla. 5th DCA 2010)(to find the defendant guilty of a violation notalleged in the affidavit constituted a denial of due process and fundamentalerror).

6. The mislabeling of the number of the condition was not fatal to theviolation where the defendant obviously knew which one was being referredto and testified about it. Roff v. State, 644 So.2d 166 (Fla. 4th DCA 1994).

7. “Revocation of probation entails a serious loss of liberty which requiresthat the probationer be afforded the essential elements of due process.Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L. Ed.2d 656 (1973).Among the minimal requirements of due process in a revocationproceeding [is] written notice of the alleged violation...” In this case, theaffidavit did not meet this standard. It alleged that the defendant had violatedcondition five of his probation "By failing to live and remain at libertywithout violating any law, in that on or about September 3, 1992, inEscambia County, Florida, [he] did unlawfully commit a disorderly act." AMotion to Dismiss was denied and the defendant's probation was revoked. Onappeal, the court reversed because the affidavit did not name a criminal

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offense, cite any criminal statute, or set forth any facts constituting acrime. The order revoking probation merely referred to the affidavit and didnot contain sufficient information to cure the affidavit. Burton v. State, 651So.2d 793 (Fla. 1st DCA 1995). See also M.T. v. State, 805 So.2d 898 (Fla.2d DCA 2001).

8. “‘An affidavit upon which a permanent revocation of probation is to bebased must allege the basic facts concerning the alleged violation, suchas its nature, time, and place of occurrence.’ Hines v. State, 358 So.2d183, 185 (Fla. 1978). Although the allegation need not be set forth withthe same specificity as required for a criminal indictment or information,due process, requires notice, when revocation is sought on account of anew offense, of what law the probationer is alleged to have violated. Id.”Burton v. State, 651 So.2d 793 (Fla. 1st DCA 1995).

9. It was proper to allow the state to amend the affidavit to reflect the correctdate that the defendant was placed on probation. This was “merely technicalin nature and did not affect the substantive allegations contained in theaffidavit of probation violation.” Rosser v. State, 658 So.2d 175 (Fla. 3dDCA 1996).

10. “While it has been said that a ‘trial court has the inherent power to revokeprobation for misconduct which demonstrates the probationer’sunfitness for probation.’ Washington v. State, 579 So.2d 400, 401 (Fla.5th DCA 1991), most cases reflect the view that ‘[p]robation may berevoked only upon a showing that the probationer deliberately andwillfully violated one or more conditions of probation.’ Steiner v. State,604 So.2d 1265, 1267 (Fla. 4th DCA 1992).” In any event, the court foundthat the affidavit was insufficient to allege misconduct demonstratingunfitness. It alleged that the defendant violated his probation by: (1) notproviding a verifiable residence to the probation officer and (2) failing toreport to a probation officer in another city as instructed by his localprobation officer. Van Wagner v. State, 677 So.2d 314 (Fla. 1st DCA 1996).

11. It was a condition of the defendant’s probation that she “undergo a SubstanceAbuse Evaluation and complete any treatment/education programrecommended by the Evaluator at [her] own expense.” She was accused ofviolating this condition by refusing to get in-patient alcohol treatment asdirected by her probation officer. On appeal the court said: “We haveseveral times held that probation or community control may not berevoked for violation of a condition or requirement imposed unilaterallyby the probation officer but not by the sentencing order.” In this case, theoriginal probation order directed evaluation, but “it did not expressly

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authorize her PO to require or prescribe treatment for her.” The orderrequired that she complete treatment ordered by the evaluator not theprobation officer. Thus, “the failure to get treatment charge does notstate a proper charge for violation of probation.” The defendant did notraise an objection to the VOP. On appeal, the court held that since theaffidavit failed to allege a violation, the defendant did not waive theargument on appeal by failing to object to the vop. Waldon v. State, 670So.2d 1155 (Fla. 4th DCA 1996).

12. The defendant was ordered to pay a fine, but it was not made a conditionof probation. The probation officer ordered that he make monthly paymentson that fine. When the defendant failed to do so, the probation officer filedan affidavit of violation. Since the trial judge did not order payment as acondition of probation there was no violation. Nichols v. State, 672 So.2d825 (Fla. 2d DCA 1995).

13. The defendant could not be violated for a violation that was not alleged inthe affidavit. Soto v. State, 727 So.2d 1044 (Fla. 2d DCA 1999).

14. The failure to allege a violation of community control in the affidavit isfundamental error and may be raised for the first time on appeal. Perito v.State, 727 So.2d 1031 (Fla. 4th DCA 1999).

15. The defendant was convicted of violating his probation by breaking astockade rule by testing positive for alcohol. Neither the affidavit nor theviolation report specifically alleged that violation. The State alleged onlythat the defendant violated the law because he was in possession of acontrolled substance and tested positive for alcohol. The revocation ofprobation was reversed. Nagel v. State, 758 So.2d 1206 (Fla. 4th DCA2000).

16. The defendant claimed that his conviction should have been reversed becausethe affidavit alleged that he was suppose to report on September 6th and theprobation officer said she told him to report on September 7th. The evidenceestablished that he did not report until after both of the dates. On appeal, thecourt found that the discrepancy was harmless because there was noprejudice to the defendant. Hollingshead v. State, 846 So.2d 627 (Fla. 4thDCA 2003).

17. The defendant argued that the failure to swear to the charging affidavitconstituted fundamental error and did not require objection. The courtdisagreed. “The defendant’s probation officer signed the charging documentunder the statement: ‘Under penalties of perjury, I declare that I have read the

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foregoing affidavit and the facts stated in it are true.’ The chargingdocument was not sworn to before a person authorized to administeroaths. In Jackson v. State, 881 So.2d 666 (Fla. 5th DCA 2004), this Courtheld that section 948.06(1)(b), Florida Statutes, requires that an affidavitform the basis for a charge of violation of probation and that a defectsuch as that involved in the instant case, where raised by motion todismiss, constitutes reversible error. Such defect, however, does not riseto the level of fundamental error.” Smartmays v. State, 901 So.2d 278(Fla. 5th DCA 2005). See also Chadwick v. State, 118 So.3d 827 (Fla. 2dDCA 2012); Miranda v. State, 909 So.2d 997 (Fla. 5th DCA 2005); Ruizv. State, 908 So.2d 508 (Fla. 5th DCA 2005); Burlew v. State, 905 So.2d103 (Fla. 5th DCA 2005).

18. The defendant alleged that a typo failing to allege the date that the newoffense occurred as being after he was placed on probation was fundamentalerror. The defendant admitted it occurred on a date after he was placed onprobation. That was not fundamental error. “Technical defects must typicallybe raised at or before trial in order to be cognizable on appeal. (Citationsomitted). Defects in a violation of probation charging document havetraditionally been scrutinized by a lesser standard with the overarchingconsideration being protection of the probationer’s minimal due processrights. See Langbaum v. State, 799 So.2d 391 (Fla. 4th DCA 2001).Fundamental error, however, has been held to exist where a violation ofprobation affidavit is not served upon the defendant, Davis v. State, 891So.2d 1186 (Fla. 4th DCA 2005), or where the affidavit fails toadequately provide notice of the charge forming the basis for revocation.Ray v. State, 855 So.2d 1260 (Fla. 4th DCA 2003). The error here is not inthe substance of the charging document which alleges specific conductconstituting a violation of probation.” Smartmays v. State, 901 So.2d 278(Fla. 5th DCA 2005).

19. The document signed at the time of arrest was sufficient to comply with theaffidavit requirement. But it was defective in that it read that the factsalleged were “‘correct to the best of my knowledge.’ In the blanksprovided under the capitalized words ‘SWORN TO AND SUBSCRIBEDBEFORE ME,’ the oath contains the signature of a person but no notarystamp or other indication that the person was authorized to administeroaths or attest to signatures. However, we note that the person whowitnessed the CRA/NTA as a notary is the same person who properlynotarized the VOP affidavit.... Here, any technical deficiencies in theaffidavit filed on October 19 were cured by the affidavit filed on October25. The second affidavit may not have been filed as an ‘amended affidavit,’but we conclude that it served that purpose.... we conclude that this

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probation officer achieved a tolling of the term of probation by timelyfiling the first technically defective affidavit, which was quickly cleansedof errors by the filing of the second affidavit.” Chadwick v. State, 118So.3d 827 (Fla. 2d DCA 2012).

20. “The issue we address in this case is whether an arrest affidavit to secure awarrant for violation of probation is valid if it is verified under section92.525, Florida Statutes (2003), but not sworn to before a person authorizedto administer oaths. In Jackson v. State, 881 So.2d 666 (Fla. 5th DCA 2004),we held that an affidavit to secure a warrant for violation of probationpursuant to section 948.06(1), Florida Statutes (2002), must be sworn tobefore a person authorized to administer oaths and that verificationunder section 92.525 is not appropriate. We consider this case en bancto provide additional reasoning for our decision in Jackson and to clarifythat our holding in that case does not prohibit application of the goodfaith exception to the exclusionary rule to warrants obtained withaffidavits verified under section 92.525.... The instant case does not involvefalse and misleading information that was included in the affidavit and thereis absolutely nothing in the record to suggest that relevant information thatwould negate the existence of probable cause was excluded. Moreover, Craindoes not suggest that the substantive allegations in the affidavit failed toestablish probable cause for his arrest. In fact, there is absolutely nothingin the record before this court that would remotely suggest policemisconduct or that the police in any way acted in bad faith in securingthe warrant for Crain’s arrest. Here, the police erroneously relied on theprovisions of section 92.525 to validate the verification contained in theaffidavit. If the verification was improper, the judge should not have signedthe warrant. Moreover, this court has consistently applied the good faithexception when, as in the instant case, the warrant is ‘regular on its face andthe affidavit upon which it was based was not so lacking in indicia ofprobable cause that the officer executing the warrant could not withreasonable objectivity rely in good faith on the magistrate's probable causedetermination and on the technical sufficiency of the warrant.’ State v.Harris, 629 So.2d 983, 984 (Fla. 5th DCA 1993); see also State v. Wildes,468 So.2d 550, 551 (Fla. 5th DCA 1985). Based on the facts andcircumstances present in the record before us, a reasonably trained officerwould not have known that the affidavit was improper despite the judge’ssignature on the warrant. We conclude, therefore, that the good faithexception clearly applies and that the trial court erred in dismissing thewarrant. The arrest affidavit in the instant case was defective because itwas not properly sworn to before a person authorized to administeroaths. Nevertheless, the good faith exception clearly applies and the trialjudge should not have dismissed the warrant. While we agree with the

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decision in Jackson that section 92.525 should not apply to affidavitsexecuted to secure an arrest warrant pursuant to section 948.06, the remedyof dismissal applied in Jackson is inappropriate in instances where thegood faith exception applies. Because the instant case is one of thoseinstances, we conclude that the trial court has jurisdiction to proceedwith the violation of probation proceedings, and Crain should be held toanswer for his alleged violations.” Crain v. State, 914 So.2d 1015 (Fla. 5thDCA 2005).

21. “On appeal, Felton alleges that the charging affidavit was defective becauseit was not sworn to before a person authorized to administer oaths....Felton argues that the sufficiency of the charging affidavit isfundamental, and analogizes to criminal contempt proceedings or caseswhere probation was revoked for conduct not charged or never reduced towriting. However, his argument is unavailing. Our decision in Smartmaysv. State, 901 So.2d 278 (Fla. 5th DCA 2005), is dispositive. There, we heldthat the failure of the charging affidavit to be sworn to before a personauthorized to administer oaths is a technical defect that does not rise tothe level of fundamental error. Id. at 279.... The error is not in thesubstance of the charging affidavit, but rather ‘involves a failure to comportwith a provision of section 948.06(1), Florida Statutes [ (2004) ]. Suchnon-compliance, while error, is not the type of defect which hastraditionally been considered fundamental, particularly in a probationrevocation context.’ Smartmays, 901 So.2d at 280. Accordingly, we find nofundamental error and affirm.” Felton v. State, 919 So.2d 557 (Fla. 5th DCA2005).

22. See cases under jurisdiction.

D. Rights of defendant.

1. A probation violation hearing is a critical stage of the proceeding wherethe defendant has the right to be present unless he waives that right.Summerall v. State, 588 So.2d 31 (Fla. 3d DCA 1991).

a. Defendant needed an interpreter. The failure of the trial judge to havean interpreter present for ruling and announcement of sentenceconstituted a violation of the due process right to be present.Defendant had an interpreter during the evidentiary hearing and askedfor one while judge announced the ruling. Providing an interpreterto explain the ruling and sentence was not sufficient. Benitez v.State, 57 So.3d 939 (Fla. 3d DCA 2011).

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2. Bail.

a. There is no constitutional right to bail on a probation violation.Bernhardt v. State, 288 So.2d 490 (Fla. 1974). See also Peraza v.Bradshaw, 966 So.2d 504 (Fla. 4th DCA 2007); McCarthy v.Jenne, 861 So.2d 99 (Fla. 4th DCA 2003).

b. It is error to refuse to give any consideration to bail on a violationof probation. Jansenson v. Felton, 768 So.2d 1090 (Fla. 3d DCA1995).

c. Court has discretion pursuant to §948.06(1) to set bail on a violationof probation and it is an abuse of discretion to establish a policy tonever set bail on violations. Glosson v. Solomon, 490 So.2d 94(Fla. 3d DCA 1986). See also Woods v. State, 987 So.2d 669 (Fla.2d DCA 2007)(same ruling as to a policy not to grant bail to allaccused of a new offense while on probation).

d. Court has discretion to hold a probationer on a violation with orwithout bail. Rummells v. State, 657 So.2d 88 (Fla. 5th DCA 1995).

e. “In this case, after bond had been set, the state filed an amendedaffidavit of violation of probation adding the new charge thatpetitioner had been driving under the influence of a controlledsubstance, in addition to alcohol. At the first bail hearing,petitioner argued that the evidence against him for DUI wasweak, since his blood alcohol reading was .00. The trial court didnot abuse his discretion in reconsidering bail under the newcharge on the amended violation of probation warrant.”McCarthy v. Jenne, 861 So.2d 99 (Fla. 4th DCA 2003).

f. The defendant was on probation on a drug charge and committed atrafficking charge and was charged with a vop. The first appearancejudge set a $5000.00 bond. Five months later the defendant appearedfor a preliminary vop hearing before the judge who placed him onprobation. That judge sua sponte revoked the bond because of thenature of the violation. The defendant argued that the judgeacted without authority. On appeal, the court disagreed. Rule 3.131does not apply to vops. “To allow a probationer to obtain a bond froma first appearance judge, who has little, if any, knowledge of the case,would deprive the judge or court which imposed the sentence fromdetermining, in its discretion, the appropriate release provisionspending a final hearing on the probation. Because the probationer

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is only on probation as an act of grace of the sentencing court, thesentencing court has the discretion to grant or deny bail pendingthe revocation hearing. A first appearance judge has theauthority to set bail only pending a further hearing before thesentencing court. See § 948.06(4), Fla. Stat. (2006) (whereprobationer is arrested, taken before a court in the county in which heor she is arrested and denies a violation of probation, the court mayrelease the probationer with or without bail ‘to await furtherhearing’). Peraza was already on probation for drug charges, andhe was arrested for another drug offense in direct violation of theterms of his probation. This was no technical violation of theconditions of his probation. We think it is well within thediscretion of the sentencing court to refuse his continued release.The trial court did not abuse its discretion in determining not tocontinue Peraza on bail.” Peraza v. Bradshaw, 966 So.2d 504 (Fla.4th DCA 2007).

g. This case seems to be contra to Peraza. In this case, a judge issued awarrant based on an affidavit of violation and directed that thedefendant be held with bail. Another substitute judge disagreed withthat ruling and released the defendant ROR. The State appealed. Onappeal, the court relied on Rule 3.111 to hold that the substitutejudge had no such authority. The court agreed and found that thesubstitute judge acted without authority. Hall v. Ryan, 98 So.3d1195 (Fla. 3d DCA 2012).

h. See statutory language above on pretrial release on sexualoffenders, sexual predators and violent offenders.

3. Notice and right to public and fair hearing.

a. The defendant is entitled to notice of the alleged violation and anopportunity to be heard before revocation. Lawson v. State, 969So.2d 222 (Fla. 2007).

b. Pursuant to Rule 3.130, the defendant has the right to be takenbefore a judicial officer within 24 hours of arrest on a violationof probation. A crowded court docket does not eliminate this right.Hill v. State, 739 So.2d 634 (Fla. 4th DCA 1999).

c. The hearings are informal and are not like a regular trial.Bernhardt v. State, 288 So.2d 490 (Fla. 1974).

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d. The defendant was in prison in one county. The other county filed adetainer on a violation of probation. The defendant maintained thatthe detainer entitled him to a hearing on the violation of probation.On appeal, the court held that the detainer did not trigger theright to such a hearing. Only an arrest on the violation wouldtrigger the right to a hearing. Diaz v. State, 737 So.2d 1203 (Fla.5th DCA 1999). See also Bonner v. State, 866 So.2d 163 (Fla. 5thDCA 2004).

e. The defendant has the right to written notice of the charges, limitedright to confront and cross-examine witnesses, and to have ahearing before a neutral and detached body. Gagnon v. Scarpelli,411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Peters v. State,984 So.2d 1227 (Fla. 2008); State v. Heath, 343 So.2d 13 (Fla.),cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977);Bernhardt v. State, 288 So.2d 490 (Fla. 1974); Hall v. State, 512So.2d 303 (Fla. 1st DCA 1987). See also Staley v. State, 851 So.2d805 (Fla. 2d DCA 2003); McFadden v. State, 732 So.2d 1180 (Fla.4th DCA 1999); Kilpatrick v. State, 516 So.2d 56 (Fla. 2d DCA1987).

f. Defendant was accused of violating probation by committingdomestic violence on his girlfriend. The State called the girlfriend totestify. “Immediately after she was sworn in, the trial courtquestioned her preliminarily before allowing the State to ask anyquestions. After the State asked three questions, the trial courtinterrupted and resumed the questioning.” The court asked her “fortyquestions, while the prosecutor asked her three. The judge asked theProbation Director six questions, and neither other attorney wasoffered the chance to examine her. Finally, the court asked Mr. Searstwenty-two questions, even though he was never sworn in and nevertook the stand. Of course, neither counsel was given a chance toexamine him.” The questions to the defendant related to the newcrime. The court’s questions established the elements of the violation.At the conclusion of the “last series of questions, the trial courtabruptly found Mr. Sears guilty of violating his probation, andsentenced him to prison.” On appeal, the court reversed. “Everycriminal defendant is entitled to court proceedings that are presidedover with cold neutrality by an impartial judge, particularly when thejudge also acts as the finder of fact.(Citations omitted) .... ‘The judgemust above all be neutral and his neutrality should be of thetough variety that will not bend or break under stress. He mayask questions to clarify the issues but he should not lean to the

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prosecution or defense lest it appear that his neutrality isdeparting from center. The judge’s neutrality should be such thateven the defendant will feel that his trial was fair.’ 143 So.2d 484,488 (Fla.1962).... The requisite for a neutral finder of fact doesnot foreclose a judge from asking questions designed to makepreviously received ambiguous testimony clear. See McFadden,732 So.2d at 1185. Certainly a trial judge should not be compelled toact out of confusion or a misapprehension of the facts. The capacityto clear up ambiguous or confusing testimony, however, is not aninvitation to trial judges to supply essential elements in the state’scase. Id.... The trial judge in the present case crossed the line ofneutrality and impartiality, and as a result, Mr. Sears did not receivea fair and impartial violation of probation hearing.” Sears v. State,889 So.2d 956 (Fla. 5th DCA 2004).

g. The defendant was charged with several crimes, including possessionof cocaine, as grounds for a VOP. After the defense attorney finishedexamining the defendant, the judge asked the defendant questionsabout whether he was in possession of cocaine and establishedthat he was. The only charge the court found that the defendant hadcommitted was the possession. The court reversed. “A court mayquestion witnesses when required by the interests of justice. §90.615(2), Fla. Stat. (2009). Questioning may be necessary, in thecourt’s discretion, to ascertain the truth, or to clarify an issue.(Citation omitted) A court may not ask questions or makecomments in an attempt to supply essential elements to the State’scase. (Citation omitted) Further, the trial judge’s words or actions‘should not lean to the prosecution or defense lest it appear that hisneutrality is departing from the center.’ (Citation omitted) .... Here,the trial court actively sought out and questioned whether R.O. hadcocaine. The trial court departed from the appearance ofneutrality and became an active participant and advocate in theproceedings. The record clearly shows that defense counsel hadfinished questioning R.O. when the trial judge sua sponte questionedR.O. to supply essential elements of the prosecution’s case, to wit, theultimate issue of R.O.’s guilt on the cocaine possession charge.... Wefind that the trial court’s questioning went well beyond generalfact finding required by the interests of justice, elucidation ofevidence, or mere curiosity. Instead, the trial court went right tothe heart of the material element of the State’s case. In so doing,the trial court cannot be considered a neutral arbiter.” R.O. v.State, 46 So.3d 124 (Fla. 3d DCA 2010).

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h. In a violation of probation proceeding, the trial judge madesuggestions to the State, did other things that aided the State, andasked questions that assisted the State. On appeal, the court reversed.“The same person simply cannot be both prosecutor and judge justbecause it is only a VOP hearing and not a full-blown criminal trial.The requisite of a neutral factfinder does not foreclose a judgefrom asking questions designed to make prior ambiguoustestimony clear. But that general ability to clear up theambiguous is not an invitation to trial judges to supply essentialelements in the state’s case. As we succinctly said in Merchan v.State, 495 So.2d 855, 856 (Fla. 4th DCA 1986), ‘the judge may not,in fact, also act as the prosecutor.’ With regard to a judge initiatingthe introduction of evidence, this court has condemned the practice:‘While it is permissible for a trial judge to ask questions deemednecessary to clear up uncertainties as to issues that appear to requireit, the trial court departs from a position of neutrality, which isnecessary to the proper functioning of the judicial system, when it suasponte orders the production of evidence that the state itself neversought to offer into evidence.’ [c.o.] J.F. v. State, 718 So.2d 251, 252(Fla. 4th DCA 1998).” The opinion is very detailed and is mandatoryreading. McFadden v. State, 732 So.2d 1180 (Fla. 4th DCA 1999).See also Edgel v. State, 962 So.2d 356 (Fla. 1st DCA 2007); Evansv. State, 831 So.2d 808 (Fla. 4th DCA 2002)(the trial courtinterjected himself into the state’s cross-examination of defendantby suggesting inquiry into her immigration status after she toldthe court she was a law abiding citizen); Cagle v. State, 821 So.2d443 (Fla.2d DCA 2002)(judge departed from neutral role bycalling the victim as a witness and asking the questions of thewitness); Edwards v. State, 807 So.2d 762 (Fla. 2d DCA2002)(trial judge departed from impartial role when he asked allthe questions for the prosecutor and then turned the witness overto the defendant for cross); Riddle v. State, 755 So.2d 771 (Fla. 4thDCA 2000)(trial judge acted improperly when he “repeatedlyinterrupted counsel and aggressively questioned appellant andthe witnesses on matters which had not been raised by the state.”)

i. “Amason contends on appeal that the trial court committedfundamental error by taking on the prosecutor’s role and thus denyingher due process.... With respect to her first contention, we concludethat the trial court did not assume the prosecutor’s role as the trialcourt did in Cagle v. State, 821 So.2d 443 (Fla. 2d DCA 2002). ‘Atrial court may conduct probation revocation proceedings in aninformal manner and it may question witnesses, but it may not

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assume the role of the prosecutor.’ Id. at 444. Although a trial judgemay ask questions, that ‘is not an invitation to trial judges tosupply essential elements in the state's case.’ Sears v. State, 889So.2d 956, 959 (Fla. 5th DCA 2004). The trial court in Cagle failedto act as a neutral and detached tribunal when it rejected the pleanegotiations concerning a probation violation, stated that it wouldconduct a hearing, and then proceeded to call and question all thewitnesses concerning the substance of the allegations. 821 So.2d at444. The trial court also questioned the probation officer withoutplacing him under oath. Id. The trial court’s conduct deprived Cagleof a fair and impartial tribunal and constituted fundamental error. Seeid.; see also Sears, 889 So.2d at 959–60 (determining that the trialjudge crossed the line of neutrality when it asked the victim fortyquestions and asked Sears twenty-two questions, although he was notplaced under oath, at a violation of probation hearing). Here, the trialcourt did not provide essential elements of the State’s case; rather,Amason admitted that she violated her probation. After the trial courtfound Amason in violation, the court asked Hair a question andAmason a question regarding what happened to the restitution money.It was certainly a relevant consideration in determining whetherto revoke her probation and sentence her to prison.” Amason v.State, 76 So.3d 374 (Fla. 2d DCA 2011).

j. “Lewis first argues that the trial court departed from its role as aneutral magistrate when it questioned the State’s witnesses at thehearing. We reject this argument because the transcript showsthat the trial court asked some clarifying questions of witnesses,but the court did not take over the prosecution’s role orotherwise abandon its role as a neutral magistrate through itsquestioning.” Lewis v. State, 964 So.2d 766 (Fla. 2d DCA 2007).

k. The trial judge continued the violation of probation hearing andannounced that he wanted to hear from certain specified witnesses.After hearing the additional evidence, the trial judge found thedefendant guilty. The defendant argued that the trial judge lost hisstatus as a neutral tribunal and that the appellate court shouldreverse. The court disagreed. “In appellant’s case, there wasconflicting testimony as to whether appellant had committed aviolation of his probation, but there was also sufficient evidencepresented during the state’s initial presentation of its case tosupport a finding of a violation. The trial court judge also had noidea how the requested witnesses would testify and merelyidentified these witnesses as individuals he wanted to hear from

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as part of his search for the truth. Finally, the trial court’sneutrality in requesting testimony from the three identified witnesseswas shown by the fact that the court had, at that point in theproceedings, already directed a continuance in order to provide thedefense with the opportunity to present evidence favorable toappellant’s position. On these facts, we cannot conclude that the trialcourt’s requesting of additional information from the specifiedwitnesses constituted reversible error.” Kirkpatrick v. State, 769So.2d 515 (Fla. 1st DCA 2000).

l. Whether to grant a motion for disqualification is a question of lawand subject to de novo review. The trial judge sent out letters tovarious attorneys seeking information for the court to consider duringsentencing. A copy of the letter was sent to the parties. The defendantmoved to disqualify the judge. The court denied the motion. Onappeal, the court reversed. “In personally soliciting information,the court departed from its neutral and impartial role. Surely, acourt can request parties to present information it deems relevantto a sentencing and inform interested persons about an upcominghearing. When, however, the court transforms itself into one ofthe litigants, it creates a well-founded fear that a party will not bedealt with in a fair and impartial manner. The court’s quest forinformation in this case crossed the line of neutrality.”Additionally, the trial judge denied the defendant’s request to speakto the court and to continue the allocution hearing to deal with someof the information the trial judge had gathered. The defendant had anopportunity earlier to present witnesses, but the trial judge refused toallow him to present more evidence or to make an oral statement eventhough the judge had told the parties that they would be givenadditional time. “Once the trial court left the sphere ofimpartiality by personally soliciting the information, hissubsequent denial of the defendant’s request to continue theallocution hearing, after he promised additional time, would leada reasonably prudent person to have a ‘well-founded fear’ thathe will not receive and impartial handling of his case.”Chillingsworth v. State, 846 So.2d 674 (Fla. 4th DCA 2003).

m. The court relied on the decision in Sears. The defendant was accusedof violating her probation by driving on a suspended license. Theprosecutor established a prima facie case by introducing the drivingrecord and the testimony of the officer that the defendant admitted sheknew her license was suspended. Without objection the trial judgecalled the defendant as a witness and confirmed that she drove on

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a suspended license, asked how many names she used it, andasked whether she had any reason to be driving. On appeal, thedefendant argued that this was fundamental error. “‘All parties whoappear before a court, including probationers, are entitled to aproceeding ‘presided over with cold neutrality by an impartial judge,particularly when the judge also acts as the finder of fact.’ Sears v.State, 889 So.2d 956 (Fla. 5th DCA 2004). This fundamentalprecept does not foreclose a trial judge from asking questions toascertain the truth or to clarify issues. There is no bright-line testto determine when a judge crosses the line and departs from therole of impartial magistrate. The question is fact-intensive, andits resolution dependent upon the circumstances of each case....A judge should not appear to take on the role of a prosecutor....It is certainly preferable that a judge presiding over a violation ofprobation hearing not sua sponte call witnesses, particularly when thatwitness has a Fifth Amendment right against self-incrimination inlight of the new substantive violation. It is unclear in the violation ofprobation order whether the trial judge relied upon that testimony tofind Gerali admitted driving on a suspended license, or whether herelied on the arresting officer’s testimony. In any event, the Stateestablished a prima facie violation of probation before the trialcourt interjected by calling Gerali as a witness. The trial courtdid not supply any missing elements, orchestrate prosecutorialstrategy, direct evidence gathering on essential issues ordemonstrate a bias, either on behalf of the State or againstGerali. (Citation omitted) While the trial court should have inquiredwhether the defense wished to present a case before fleshing outwhether there were mitigating factors to Gerali’s decision to drive,the trial judge apparently accepted Gerali’s explanation, and ratherthan simply impose the suspended sentence, halved it. We do not findthat Gerali was denied a fair hearing or that the trial court committedfundamental error.” Gerali v. State, 50 So.3d 727 (Fla. 5th DCA2010).

n. In Black v. Romano, 471 U.S. 606, 612 , 105 S.Ct. 2254, 85 L. Ed.2d636, 642-43 (1985), the Court said: “The probationer is entitled towritten notice of the claimed violations of his probation;disclosure of the evidence against him; an opportunity to beheard in person and to present witnesses and documentaryevidence; a neutral hearing body; and a written statement by thefactfinder as to the evidence relied on and the reasons for revokingprobation.” In this case, the court failed to make the written findingsas to which of the charged violations were the basis for the court's

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decision. McCloud v. State, 653 So.2d 453 (Fla. 3d DCA 1995). Seealso Bernhardt v. State, 288 So.2d 490 (Fla. 1974).

o. “Revocation of probation entails a serious loss of liberty whichrequires that the probationer be afforded the essential elementsof due process. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756,36 L. Ed.2d 656 (1973). Among the minimal requirements of dueprocess in a revocation proceeding ... in the event of revocation,[is] a written report by the finder of fact setting forth theevidence of violation and the reasons for revocation.” In this casethe affidavit was defective and the order of revocation simply foundthat the allegations of the affidavit [commission of new crime] hadbeen proven. “At a minimum, due process requires ‘ ‘a writtenstatement by the factfinders as to the evidence relied on andreasons for revoking [probation or] parole.’ ’ Gagnon, 411 U.S.at 786, 93 S.Ct. at 1762, quoting Morrisey v. Brewer, 408 U.S. 471,489, 92 S.Ct. 2593, 2604, 33 L. Ed.2d 484 (1972) (alteration inoriginal).” Burton v. State, 651 So.2d 793 (Fla. 1st DCA 1995).[For facts see discussion of case supra under sufficiency of affidavit].See also Bernhardt v. State, 288 So.2d 490 (Fla. 1974).

p. “‘While appellant was advised of the charge of violation and admittedthat he understood that a guilty plea would open up his originalsentence for reconsideration, there was no affirmative inquiry intowhether the plea was voluntarily and freely given. Hence, therecord might not stand the scrutiny of Boykin had this been a plea toan original criminal charge, but we do not need to decide thatquestion. A hearing for the revocation of probation need not meetthe strict requirements of a criminal trial. It is enough that ahearing be held in which evidence is taken and in which theprobationer has a reasonable opportunity to present hisposition.’” quoting from Washington v. State, 284 So.2d 236, 237(Fla. 2d DCA 1973). Allen v. State, 662 So.2d 380 (Fla. 4th DCA1995).

q. “[F]undamental due process requires revocation to be basedupon only those violations alleged.” In this case, the defendant wasaccused of violating condition 4 of his probation by breaking the law.He was found guilty of violating condition 15 by being hostile to anunspecified victim. There was no such allegation in the affidavit.Wyns v. State, 679 So.2d 882 (Fla. 5th DCA 1996). See also Casasv. State, 27 So.3d 203 (Fla. 2d DCA 2010).

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r. In a violation of probation hearing after all evidence had beenpresented the defense attorney said: “Judge, do I get a chance to makean argument?” The judge said: “No, I find that Mr. Caballero, ... hasviolated his probation....” The court then sentenced the defendant. Onappeal, the court ruled that it was error to deny the defendant theright to a closing argument. The court relied on Black v. Romano,471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985). There theCourt recognized these two aspects of violation proceedings: (1) aretrospective factual question as to whether the defendant violated acondition of probation; (2) a discretionary determination as towhether the violation warrants revocation of probation. A defendanthas the right to an opportunity to be heard on both questions -whether there has been a violation and, if so, what is theappropriate sentence. The hearing may be informal, but theremust be a reasonable opportunity to be heard. The court affirmedthe revocation, but remanded for a new sentencing hearing. Estevezv. State, 705 So.2d 972 (Fla. 3d DCA 1998).

s. “However, that leads to Amason’s second contention that she was notgiven an adequate opportunity to be heard regarding the sentencingportion of the hearing.... In addition to the factual determination ofwhether a violation of probation has occurred, a trial court’sdecision to revoke probation involves a discretionarydetermination of whether the violation justifies the revocation ofprobation. (Citation omitted). A probationer must have anopportunity to present mitigating evidence and argue forsentencing alternatives when the court has sentencing discretion.(Citation omitted). A trial court must give a probationer anopportunity to be heard on sentencing in probation revocationproceedings. (Citations omitted). After the trial court’s briefquestioning of Hair and Amason, defense counsel tried to interject,but the trial court cut her off three times. Defense counsel was notgiven an opportunity to cross-examine the witnesses. She was alsonot able to make any argument responding to the trial court’sconclusion that Amason was committing fraud or that thestatutory maximum sentence was warranted. Under thesecircumstances, Amason was denied due process.” Amason v. State,76 So.3d 374 (Fla. 2d DCA 2011).

t. The defendant was placed on probation for driving while under theinfluence of prescription drugs and causing an accident with seriousbodily injury. He was placed on probation and was violated for usingmarijuana. He admitted the violation. A victim and a parent of

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another victim testified at the sentencing on the VOP. “Theyaccused the defendant of being uncaring, of being callous and ofstaying in his car after the accident, instead of offering help.Thereafter, the judge adjourned the hearing because he wanted toallocate more time to the case.... When the hearing was reconvened... the defendant sought to rebut the testimony the state hadintroduced. He requested that the court view the five-minutevideotape of the accident scene filmed by the first patrol car thatarrived on the scene, because the defendant said it would showboth remorse and his efforts to give immediate aid to the victims.He offered (and later proffered) the videotape to rebut the state'stestimony that he was not remorseful and had not offered help. Thestate objected. It argued that it would be improper for the court toconsider the defendant’s evidence because the underlying case wasclosed. The court did not allow the defendant to present any furtherevidence.... We hold that the court improperly denied the defendantthe opportunity to rebut the state’s evidence.... The court consideredevidence from the state and victims regarding the accident andthe defendant’s alleged lack of remorse at the accident scene.Particularly before a new judge, the defendant was entitled topresent evidence on these points to rebut the picture the state haddrawn.” Goldberg v. State, 65 So.3d 115 (Fla. 3d DCA 2011).

u. When the trial judge publicly announces a sentencing policy thatmay subject the judge to disqualification. In this case, the judgestated that jail should always be followed by a term of probation.Martin v. State, 804 So.2d 360 (Fla. 4th DCA 2001), rev. denied,819 So.2d 139 (Fla. 2002).

v. In a proceeding to determine where the defendant would be housedprior to the violation hearing, the judge said, “‘Why don’t we sethim for Probation Violation Hearing, and send him to prison?’”On the basis of this statement, the defendant moved to disqualify thetrial judge. The motion was sufficient on its face and should havebeen granted.... “The trial judge’s statement ... would create a fearin the mind of a litigant that the trial judge had prejudged thecase.” Dorch v. State, 952 So.2d 1244 (Fla. 3d DCA 2007).

w. In the absence of a stipulation or a waiver, the trial judge could nottreat the trial on a new charge as the revocation hearing.Parminter v. State, 762 So.2d 966 (Fla. 2d DCA 2000).

x. “[T]he revocation of probation, which was based upon five alleged

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new law violations, including the burglary charge, was improperbecause the appellant was denied his due process right to a hearing onthe alleged violations before his probation was revoked. See, e.g.,Bernhardt v. State, 288 So.2d 490 (Fla.1974). Although the statepresented evidence on the burglary charge at trial, the trial of acriminal case should not be construed as a probation revocationhearing absent a defendant's stipulation or consent, neither ofwhich is present in this case. See State v. Spratling, 336 So.2d 361(Fla.1976).” Thus, the court reversed. McLean v. State, 990 So.2d1229 (Fla. 1st DCA 2008).

y. The defendant was accused of committing several new offenses. Hefiled a motion to suppress in that proceeding. He was also chargedwith a violation of probation. The trial judge did the hearing on themotion to suppress and on the violation of probation at the same time.The judge granted the motion to suppress, but found the defendantguilty of a violation of probation. However, the trial court alsorevoked the defendant’s probation. On appeal, the court reversed.“Evidence seized in violation of a probationer’s FourthAmendment rights is not admissible in a probation revocationhearing. State v. Scarlet, 800 So.2d 220, 222 (Fla. 2001); State v.Cross, 487 So.2d 1056, 1057-58 (Fla.1986). Thus, the evidence thatthe trial court ultimately suppressed was not properly admittedor considered in the revocation proceedings. Because of theunusual decision to combine the hearings on the motion tosuppress and the revocation of probation, we cannot tell from therecord before us whether the inadmissible evidence formed thebasis of the decision to revoke Jacobs’ probation.” Jacobs v.State, 848 So.2d 1287 (Fla. 2d DCA 2003).

z. The defendant and the public have a right to an open and publicviolation of community control or probation hearing. Failure toobject to closure of the hearing constitutes a waiver. Alvarez v.State, 827 So.2d 269 (Fla. 4th DCA 2002), rev. denied, 845 So.2d887 (Fla. 2003).

aa. It was improper to revoke the defendant’s probation where noformal violation of probation had been filed. In this case noaffidavit appeared in the record and the clerk filed a certificationof non-existence. The testimony of the probation officer that she hadsubmitted an affidavit was not sufficient to prove that the affidavitwas formally filed. Carmichael v. State, 834 So.2d 421 (Fla. 2dDCA 2003).

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bb. The defendant signed a drug court contract which contained a waiverof any adversarial hearing or trial. Subsequently, his probation wasviolated without an affidavit or hearing. On appeal, the courtreversed. “Staley simply could not have knowingly andintelligently waived his right to contest allegations against himwithout knowing what those allegations were. A probationer cancertainly waive his rights to due process and to statutoryprocedures after they have been implicated. Thus, for instance,once an affidavit of violation has been filed the probationer mayelect not to contest it. But we do not believe he can prospectivelywaive these rights.” Staley v. State, 851 So.2d 805 (Fla. 2d DCA2003).

cc. The defendant argued pursuant to Rule 3.700(c)(1), that the judgewho imposed the original sentence must conduct the violation ofprobation. That rule requires that the sentencing judge becomefamiliar with a trial, the facts, and plea discussions. “ We firstquestion whether rule 3.700(c)(1) even applies to this probationviolation proceeding. The language of the rule is limited to thesentence from the original conviction.... The rule is silent withrespect to revocation proceedings.... [Rule] 3.700(c) as construedin Lawley v. State[, 377 So.2d 824 (Fla. 1st DCA 1979)]contemplates that, except in emergency situations, a sentenceshall be imposed by the trial judge or the judge who accepted theplea. However, where a judge has placed the defendant onprobation and the probation is later revoked by another judge,I do not believe the rule demands that the first judge conductsentencing even though upon revocation the defendant istechnically being convicted of the original offense.... This court’sopinion in Cowart v. State, 860 So.2d 1041 (Fla. 5th DCA 2003) hasbeen interpreted as holding that rule 3.700 applies to probationviolation proceedings.” The trial judge sentenced defendant to 5years suspended on condition the defendant completed drug offenderprobation. “Cowart was later alleged to have violated that probation.Another judge, Judge Adams, presided over the violation hearing,revoked Cowart’s probation and sentenced him to 5 years in prison.On appeal, this court concluded Judge Adams misunderstood hisauthority in a revocation proceeding and apparently felt constrainedto merely enforce the sentence imposed by Judge Smith. Since JudgeAdams failed to consider his other options, this court reversedCowart’s sentence and remanded for reconsideration. On remand,this court directed the judge who originally imposed sentence to

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preside unless it was necessary that another judge preside. Wedid not intend for Cowart to be interpreted as requiring theapplication of rule 3.700 in every probation violation case. Insome situations, the original judge may have fashioned aparticular sentence and the violation of probation needs to beconsidered by the original judge in that context (as apparentlywas the case in Cowart). However, in other cases, the violation ofprobation has nothing to do with the original sentencing andcould be heard by another judge.... Even where rule 3.700 doesapply, we would require the defendant to object at the probationviolation hearing.... Here, for example, Scott did not complain aboutthe fact that Judge Davidson was conducting the probation violationproceeding until after the hearing had been concluded, his probationrevoked and sentence imposed. By this point, Judge Davidson wasmore familiar with the issue--the alleged probation violation--thanJudge Griesbaum. Judge Davidson became acquainted with Scott’sfile, prior record and PSI and heard from four witnesses regarding theprobation violation. Scott has not alleged that Judge Griesbaum, butnot Judge Davidson, was aware of any fact or circumstance that wascritical to a fair determination of the probation violation. If the‘obvious purpose of the rule is to assure that the judge mostfamiliar with the defendant will conduct the sentencing,’ as webelieve it is, then the appropriate judge to have sentenced Scottwas Judge Davidson.” Scott v. State, 909 So.2d 364 (Fla. 5th DCA2005).

dd. There is no requirement that the judge who sentenced thedefendant also conduct any subsequent violation of probationproceeding. Rule 3.700 generally requires that the trial judge conductthe sentencing. “According to the committee notes, subsection (c)was added to ‘emphasize that the sentencing procedure should beconducted by the trial judge or the judge taking the plea.’ Althoughviolation of probation proceedings involve a revisitation of theoriginal sentencing decision, we do not believe that rule 3.700(c)was intended to encompass subsequent violation of probationproceedings, which require consideration of events occurringafter the initial sentence has been imposed and which are oftenconducted years after the initial sentencing decision.” Lambertv. State, 910 So.2d 890 (Fla. 1st DCA 2005).

ee. The defendant sought reversal of the order revoking his communitycontrol on the grounds that the State failed to file the affidavit withthe clerk and that constituted fundamental error. The court affirmed.

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The defendant was accused of violating his CC in specific ways andthe State presented sufficient evidence to support the allegations. Thecourt revoked Sampson’s community control. “It is undisputed thatan affidavit of violation alleging the specific conditions whichSampson violated was presented to the court at the revocationhearing. However, at some point thereafter, the affidavit wasapparently misfiled or lost. The clerk of the circuit court hascertified that no affidavit exists in the case file.” The defendantrelies on Carmichael v. State, 834 So.2d 421 (Fla. 2d DCA 2003),and Johnston v. State, 684 So.2d 262 (Fla. 4th DCA 1996). Althoughwe agree that the failure to file the affidavit was error, wedisagree that the error was fundamental under the facts of thiscase.... Sampson was required to show that he was prejudiced bythe error before it would be considered to be fundamental. He hasfailed to do so. The courts in Carmichael and Johnston reversed finalorders of revocation because affidavits of violation had not been filed,finding that fundamental error had occurred. Neither opinion,however, reveals whether the affidavits were actually possessedby the parties or whether they were before the court at theevidentiary hearing, as it was in the present case..... In thosecases, the defendants may well have actually been prejudiced bythe failure to file the affidavits. The record in the case before us,however, shows that Sampson was not. Unlike the defendants inCarmichael and Johnston, it is clear that Sampson received all thedue process rights to which he was entitled, including notice of thealleged violations, an opportunity to be heard and to present evidence,and findings by the court stating the conditions violated.... [Thedefendant here] admitted to this court that the affidavit existedand that he was aware of its contents. Thus, we cannot agree withSampson’s argument that, based on Carmichael and Johnston, wemust reverse merely because the affidavit of violation was notfiled with the clerk of circuit court. Here, the trial court conducteda lengthy revocation hearing and addressed each of Sampson’salleged violations of the conditions of his community controlincluding new law violations. It is obvious from a reading of thehearing transcript that the court had the affidavit in its possession.The trial court read the allegations from the affidavit in open courtand, based on the evidence presented, made findings as to eachallegation[.] Because Sampson has not shown that he wasprejudiced by the failure to file the affidavit, he has shown nofundamental error. Accordingly, we affirm the order on appeal.”Sampson v. State, 903 So.2d 1055 (Fla. 2d DCA 2005).

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ff. The defendant was before the court on a violation of probation. Thejudge “revoked Longley’s probation and sentenced him to 30months in prison after Longley did not accept the judge’s pleaoffer of 6 months in the county jail.... The Florida Supreme Courthas addressed the issue of judicial plea bargaining and vindictivenessin two rather recent cases, State v. Warner, 762 So.2d 507 (Fla.2000)and Wilson v. State, 845 So.2d 142 (Fla.2003).... Here the sentenceimposed after Longley did not accept the plea offer was much harsher(2 1/2 years in prison versus six months in county jail). According todefense counsel, [the trial judge] initiated the plea discussionsand those discussions took place during an unrecorded,back-room conference. This clearly violates Warner. The staterelies on Longley’s two prior drug-related convictions to explain theincrease in the sentence.... In his motion to modify sentence, Longleyconcedes [the trial judge] was made aware of this ‘new’ informationduring sentencing. Had [the trial judge] indicated this was thebasis for the increased sentence, we may have considered thisinformation sufficient to render the sentence ‘non-vindictive.’ ....But [the trial judge] did not articulate any basis for the increasein the sentence.... [I]f the trial court elects to sentence moreharshly than the initially offered sentence, it should at aminimum state on the record the additional facts which emergedduring sentencing that changed the court’s viewpoint onsentencing, and how those matters factored into the court’sdecision. [The trial judge’s] failure to state the reasons for the muchharsher sentence leaves this court in the position of simply guessingthat Longley’s prior record was the basis for the fivefold increase insentence.... Longley’s right to due process in this case was violated.Not only did [the trial judge] initiate the plea negotiations but heconducted them at an unrecorded conference, thus makingreview impossible. The sentence imposed was five times greaterthan the sentence offered to Longley and was even greater thanthe sentence requested by the state. [The trial judge] did not placethe reasons for the harsher sentence on the record--the onlypossible basis for the increase being two drug offenses that weremore than ten years old. To assure that Longley has beenaccorded due process, we remand this cause for a new revocationhearing before a [different judge].” Longley v. State, 902 So.2d925 (Fla. 5th DCA 2005).

gg. The affidavit was amended several times. At the hearing it wasamended for a final time to allege that the defendant had not onlybeen arrested for the involved new charges, but that he

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committed them. This was not objected to. The court ruled that itwas not fundamental error where the defendant and his attorney hadbeen given the case numbers and charges. The amendment did notadd anything of any real substance. Coney v. State, 937 So.2d 255(Fla. 3d DCA 2006).

hh. Court reversed revocation of probation. At the revocation hearing thedefense attorney suggested the defendant should be sentenced to ayear and a day and that he could not make probation. The prosecutiongave a brief background of the underlying offenses withoutmentioning the violations. The court announced that probation wouldbe revoked and he would be sentenced to 60 months. “The recordreflects that defense counsel did not discuss the accuracy of theallegations in the affidavit of violation or the entry of a plea.Further, the State presented no evidence of the alleged violations,and the court did not inform Balsinger of the alleged violations.In fact, the court never spoke to Balsinger during the hearing,and at no point did Balsinger make any statements or admit tothe alleged violations.... In a probation revocation proceeding a trialcourt need not comply with [Rule 3.172], which governs theacceptance of a guilty or nolo contendere plea; however, section948.06(2) ... requires that the trial court advise the probationer of thealleged violation. See Edwards v. State, 721 So.2d 744, 745 (Fla. 4thDCA 1998). If the probationer does not admit to the violation andthe charged violation is not dismissed, the court must give theprobationer an opportunity to be fully heard. § 948.06(2)(d). TheEdwards court added that ‘[t]he probationer should also be told ofthe potential consequences of a guilty plea, the right to counsel,and the right to a final hearing on violation of probation, atwhich time a probationer has the ‘opportunity to be fully heardon his or her behalf in person or by counsel.’ ’ 721 So.2d at 745(quoting § 948.06, Fla. Stat. (1997)). Due process requires that theState prove an alleged violation of probation at a hearing or that thedefendant enter a knowing admission to a violation before the trialcourt revokes the defendant’s probation.... [D]efense counsel hereappeared to be addressing the circumstances as to why theviolations were not willful. [T]he trial court did not adviseBalsinger of the alleged violations, and nothing in the recordshows that Balsinger made a knowing waiver of hearing or aknowing admission of any violation. Therefore, because Balsingerwas not afforded due process we reverse the revocation order.”Balsinger v. State, 974 So.2d 592 (Fla. 2d DCA 2008).

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ii. The defendant was on sex offender probation. “Newton's probationwas imposed in Collier County but he asked that supervision betransferred to Dade County. A condition of the transfer was thatNewton find approved housing for a sex offender in that county.” Hehad approved housing, but when he got to the Dade County probationoffice, he learned that he could not stay there because of a localordinance that prohibited sex offenders in that area. “He attempted tosecure other housing, but the Dade County office rejected thealternative location as well. Newton telephoned his Collier Countyprobation officer and reported that he could not obtain approvedhousing in Dade County. The officer told Newton to return to Naplesthe next day, May 2, 2007. Newton claimed to have transportationproblems. He finally arrived in Naples twelve days after hisconversation with his probation officer and turned himself in toauthorities.” The probation officer filed a violation accusing thedefendant of failing to follow his probation officer’s orders. Five dayslater the probation officer filed an amended affidavit alleging that thedefendant violated his probation “by changing his approvedresidence-his girlfriend’s house in Dade County-without permissionand by absconding. The record does not contain a warrant issued onthe amended affidavit.” At the hearing the defendant argued thathe could not be found guilty of this violation because he wasnever placed on notice. The State argued that the originalaffidavit put him on notice when it alleged that his whereaboutswere unknown. He was found guilty of the charge alleged in theamended affidavit. On appeal the court reversed finding that theoriginal affidavit actually contradicted the amended affidavit,because the original affidavit alleged that the defendant failed toreport to the Naples probation officer in Collier County and theamended affidavit alleged he moved from the residence in DadeCounty. Newton v. State, 996 So.2d 960 (Fla. 2d DCA 2008).

jj. The trial judge found that the defendant was in possession of aweapon in violation of his probation, to wit: a butcher knife. That wasnot alleged in the affidavit. The defendant did not raise that as error.Nevertheless, the court found that it was fundamental error forthe trial court to revoke probation based on a charge not allegedin the affidavit. Bishop v. State, 21 So.3d 830 (Fla. 1st DCA 2008).See also Norris v. State, 98 So.3d 230 (Fla. 1st DCA 2012)(courtfound violation of a statute that was unrelated to the one alleged inthe affidavit and court reversed).

kk. “‘A trial court is not permitted to revoke probation on conduct

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not charged in the affidavit of revocation.’ (Citation omitted).‘[R]evoking an individual’s probation for conduct not alleged in thecharging document deprives the individual of due process andconstitutes fundamental error.’ (Citations omitted). “‘It is error for atrial court to revoke probation even for a conceded violation when theprobationer has been charged with a different violation altogether.’ “(Citation omitted). Here, McRae admitted to the curfew andconsumption of alcohol allegations; however, those allegationswere not charged in the violation of probation affidavit. This isreversible, fundamental error.” .... Because the trial court erred, wereverse the order of revocation. However, we reverse withoutprejudice to the State proceeding on the original affidavit or filing anappropriate affidavit.” McRae v. State, 88 So.3d 384 (Fla. 2d. DCA2012). See also Garcia v. State, 73 So.3d 823 (Fla. 5th DCA2011)(court erred finding violation for possessing a firearm armduring episode that formed basis for another violation because thatwas not alleged).

ll. See cases above on sufficiency of affidavit.

4. Competency.

a. The defendant was found incompetent to stand trial. Nevertheless, heentered a plea to his charge and was placed on probation. He wasaccused of violating probation. Despite the prior adjudications, thetrial judge refused to delay the probation hearing so that one oftwo experts could examine the defendant. The other expert hasexamined the defendant and fund him competent. “The trial courtmust act sua sponte, or on counsel’s motion, to enter an order for acompetency hearing if there are reasonable grounds to believe that thedefendant is incompetent to proceed. Kelly, 797 So.2d at 1280; seealso Fla. R.Crim. P. 3.210(b). Here, we agree that the trial courtabused its discretion when it neglected to hold a competency hearingfor Delisa. Delisa’s two prior incompetency adjudicationsprovided reasonable grounds to believe that he was incompetentto proceed and gave rise to a presumption of incompetency. Thelaw is well-settled that once a defendant has been foundincompetent to proceed at trial, that defendant is presumed toremain incompetent until a court enters an order finding himcompetent.... Additionally, we reject the State’s claim that Delisawaived his right to a competency hearing since he did not raise theissue in the trial court. A presumptively incompetent defendant isnot sui juris until the court declares the defendant such, and

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when a defendant is not sui juris, a defendant cannot waive hisright to a competency hearing.” Delisa v. State, 910 So.2d 418(Fla. 4th DCA 2005).

b. “Florida Rule of Criminal Procedure 3.210(a) provides that aperson accused of violation of probation ‘who is mentallyincompetent to proceed at any material stage of a criminalproceeding shall not be proceeded against while incompetent.’Furthermore, once adjudicated incompetent, the legal status of adefendant cannot change from incompetent to competent without ahearing. (Citations omitted) A determination by DCF that a criminaldefendant has regained competency is insufficient to change thedefendant’s legal status. It is the trial court’s responsibility, after ahearing, to determine whether a defendant has regained hiscompetency in order to proceed. Sledge.” Thus, the court improperlyconducted sentencing without a new competency hearing. Ericksonv. State, 965 So.2d 294 (Fla. 5th DCA 2007). See also McLean v.State, 964 So.2d 873 (Fla. 1st DCA 2007)(due process denied wherecourt accepted admission and sentenced defendant withoutcompetency proceeding where the defendant previously found to beincompetent to proceed).

5. Guilty or nolo plea to charge.

a. In accepting a guilty plea to a violation of probation, the trial courtneed not comply with Rule 3.172. The statute requires that thedefendant be advised of: (1) the violation charges; (2) potentialconsequences of a guilty plea; (3) the right to counsel, to appointedcounsel, and to confer with counsel; (4) the right to a final hearing onthe violation; (5) the fact that at the final hearing the probationer willhave the opportunity to be fully heard in person or by counsel. “Inthis case, the record does not reflect that the trial courtadequately advised appellant of his options at the preliminaryhearing for violation of probation either individually, or as partof a group of alleged violators at the beginning of the courtproceeding.” The defendant was also given inadequate time to conferwith counsel, who was appointed seconds before the plea and did notexpressly waive this right. Edwards v. State, 721 So.2d 744 (Fla. 4thDCA 1998).

b. “[I]f the defendant wishes to enter an admission to the violation, thetrial court shall, prior to revoking his probation or entering sentence,hold an admission colloquy. At a minimum, the colloquy must

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inform the defendant of the allegations against him, his right tocounsel, and the consequences of an admission or the right to ahearing and it shall afford him an opportunity to be heard.”Johnson v. State, 107 So.3d 1153 (Fla. 1st DCA 2013).

c. “Upon a guilty plea to a probation violation, there is norequirement that a determination be made as to the factual basisof the plea or that the plea was freely and voluntarily given.(citations omitted) However, in accepting a guilty plea to aprobation violation, the trial court must advise the probationerof the violation charges and, among other things, should tell theprobationer of the potential consequences of a guilty plea. SeeEdwards, 721 So.2d at 745; see also Allen, 662 So.2d at 381, citingWashington v. State, 284 So.2d 236, 237 (Fla. 2d DCA 1973) (guiltyplea to VOP affirmed where there was no inquiry as to whether theplea was freely and voluntarily given, but defendant was advised thatthe plea would reopen his original sentence for reconsideration). Inthe case at bar, the transcript of the probation revocation hearingindicates the trial court did not advise Appellant of the potentialconsequences of his plea (i.e., that his admission to the probationviolations would reopen his original sentences, and that he couldreceive 17 years in prison). Thus, the record fails to refuteconclusively Appellant’s allegation that the trial court’s failure toinform him as to the consequences of his plea resulted in a plea thatwas not knowingly and intelligently entered.” Johnson v. State, 776So.2d 1024 (Fla. 1st DCA 2001).

d. The court affirmed the denial of a motion to withdraw a plea to aviolation of probation because the record reflected that the pleacolloquy refuted the defendant’s claim concerning the flaws inthe plea. Crawley v. State, 851 So.2d 739 (Fla. 2d DCA 2003).

6. Rules of discovery apply to revocation proceedings. State v. Heath, 343So.2d 13 (Fla.), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179(1977).

a. At the hearing the defense objected to the testimony of thecommunity control officer because the state had failed to comply withthe discovery request. The trial judge conducted an inquiry and ruledthat the failure to comply was inadvertent and not prejudicial. Thetestimony was presented. On appeal the Court said: “Suffice it to saythat while an inquiry into the circumstances surrounding adiscovery violation at trial is required by Richardson v. State, 246

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So.2d 775 (Fla. 1971), the absence of such an inquiry does notconstitute reversible error, as it relates to a revocation ofprobation proceeding.” Jackson v. State, 622 So.2d 1027 (Fla. 4thDCA 1993).

b. The defendant’s probation was violated for committing a retail theft.The court reversed “because the trial court admitted into evidence avideotape not disclosed to Bellamy until shortly before the revocationhearing without first conducting a hearing as required by Richardsonv. State, 246 So.2d 771 (Fla.1971).... [The] videotape ... trackedBellamy’s movements through the store.” The defense objected. “Thetrial court limited its inquiry to ascertaining that defense counsel hadbeen able to view the videotape, and it overruled the objection....When a trial court receives notice of a discovery violation, it mustconduct an inquiry into the circumstances surrounding the violation....The trial court’s duty to conduct a Richardson hearing extends toprobation revocation proceedings. Cuciak v. State, 410 So.2d 916(Fla.1982).” One of the things that must be considered in aRichardson hearing, is the procedural prejudice suffered by the partynot receiving discovery. “‘[T]he defense is procedurally prejudicedif there is a reasonable possibility that the defendant’s trialpreparation or strategy would have been materially different had theviolation not occurred. Trial preparation or strategy should beconsidered materially different if it reasonably could havebenefited the defendant.’ State v. Schopp, 653 So.2d 1016, 1020(Fla.1995); .... In this case, ... the trial court failed to inquire ormake findings concerning the circumstances surrounding theviolation.... We are unable to conclude from the record that thediscovery violation could not have materially hindered thedefense.... Once the videotape was admitted into evidence and playedfor the trial court, Bellamy had no defense.... We cannot say beyonda reasonable doubt that Bellamy was not procedurally prejudicedby the discovery violation, and therefore, we cannot conclude thatthe violation was harmless.” Bellamy v. State, 901 So.2d 340 (Fla.2d DCA 2005).

c. This was a violation of probation. The defendant was accused ofviolating probation by stabbing his girlfriend and driving a stolentruck. “The case had been pending for two years and had beencontinued at least two times at the request of the defendant. Thedefense provided a list of witnesses on the day of the probationviolation hearing. The State objected and the trial court conducted aRichardson hearing” The court excluded the witnesses and found the

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defendant guilty. Among other things which the court foundinadmissible, the defense stated that the witnesses would testify aboutthe victim’s reputation for truthfulness in the community. “[T]hecourt determined that testimony regarding the victim’sreputation in the community for truthfulness was admissible andrelevant. The court should have attempted to fashion another,less severe, sanction such as continuing the hearing for the Stateto obtain the needed information, before deciding to exclude thewitnesses. (Citation omitted) However, we conclude that the errorwas harmless beyond a reasonable doubt because there is no‘reasonable possibility that the lack of the evidence complained ofmight have contributed to the conviction....’ Comer, 730 So.2d at775.” Pintado v. State, 970 So.2d 857 (Fla. 3d DCA 2007).

d. “A Richardson hearing is required in a probation revocationproceeding. See Cuciak v. State, 410 So.2d 916 (Fla.1982). Thecircuit court did not conduct a Richardson inquiry. The state hasfailed to demonstrate that the failure to conduct such a hearingwas harmless. The state’s witness had been drinking and usingcocaine on the night in question, but said that she was not‘obliviated.’ Although defense counsel had 30 minutes to interviewthe witness prior to the hearing, proper notice of the witness wouldhave given the defense time to more fully develop an effectiveimpeachment strategy.” Bell v. State, 969 So.2d 1115(Fla. 4th DCA2007).

7. Freedom from unlawful searches.

a. In certain cases involving sexually explicit behavior with or relatingto children, certain conditions are mandatory, including, “Submissionto a warrantless search by the community control or probationofficer of the probationer’s or community controllee’s person,residence, or vehicle.” 948.30(1)(k).

b. The court imposed this condition: “You will submit to a reasonablesearch without a Warrant by your officer of your person, effects,residence or vehicle for weapons or firearms, alcoholic beverages, orcontrolled substances.” The defendant challenged because it was notorally announced. On appeal, the court upheld the condition saying:“although not a standard condition of probation nor a generalcondition, [it] has been upheld even though not orallypronounced at sentencing because probation officers must beable to conduct warrantless searches in order to properly

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supervise their probationers.” Queen v. State, 832 So.2d 956 (Fla.5th DCA 2002).

c. A probationer does not forfeit his Fourth Amendment right to be freefrom unreasonable searches and seizures or his fifth amendmentprivilege against self-incrimination. “By reason of the probationer’sstatus, however, these rights are qualified rights.” Grubbs v.State, 373 So.2d 905 (Fla. 1995).

d. “In summary we hold: (1) the authority of law enforcement officersand probation supervisors to conduct a warrantless search of aprobationer is not dependent upon the presence of an expresssearch condition in an order of probation; (2) a warrantlesssearch of a probationer’s person or residence by a probationsupervisor is valid to the extent that the evidence discovered isused only in probation violation proceedings; (3) the use of seizedevidence in a new criminal proceeding requires compliance withcustomary fourth amendment requirements although the opportunityto meet those requirements may be easier because the defendant is aprobationer; (4) to the extent it intends to grant greater authorityto law enforcement officers to conduct a warrantless search aunilateral search condition set forth in an order of probationrequiring a probationer to consent at any time to a warrantlesssearch is a violation of the fourth amendment to the United StatesConstitution and article I, section 12, of the FloridaConstitution.” Grubbs v. State, 373 So.2d 905 (Fla. 1995). See alsoLawson v. State, 751 So.2d 623 (Fla. 4th DCA 1999)(court foundadministrative search of residence of person on community controlvalid and declined to consider the effect of Pennsylvania Bd. OfProbation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141L.Ed.2d 344 (1998)).

e. The right to be free from unreasonable searches and seizuresapplies to probation revocation proceedings. State v. Cross, 487So.2d 1056 (Fla. 1986); State v. Dodd, 419 So.2d 333 (Fla. 1982).

f. The exclusionary rule applies to revocation proceedings. Where thedefendant was unlawfully arrested for carrying a concealed weaponwhich resulted in the unlawful seizure of cocaine from his person, itwas improper to revoke his probation based upon such evidence.Robinson v. State, 547 So.2d 321 (Fla. 5th DCA 1989).

g. It was error to deny a motion to compel an officer to reveal the

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location where he allegedly observed the defendant engage in asuspected drug transaction, which constituted the basis for an allegedviolation of probation. That information would have allowed thedefendant to cross-examine the officer as to his ability to observe thetransaction to determine whether the officer had probable cause tostop, search, or arrest the defendant. Mathis v. State, 545 So.2d483 (Fla. 1st DCA 1989).

h. Material seized as a result of an illegal search or seizure isinadmissible in a probation revocation proceeding. White v.State, 619 So.2d 429 (Fla. 1st DCA), rev. denied, 626 So.2d 208 (Fla.1993).

i. The exclusionary rule as it relates to the Fourth Amendment,applies to revocation proceedings. Morse v. State, 604 So.2d 496(Fla. 1st DCA 1992); Pendergrass v. State, 601 So.2d 1250 (Fla. 2dDCA 1992).

j. The probation officer was given a tip by a state attorney’s investigatorthat the defendant might be dealing in cocaine. The defendant’s lasturinalysis was positive for cocaine. The probation officer searched thedefendant's residence and discovered cocaine. The District Court heldthat the evidence was admissible in any subsequent proceeding. TheSupreme Court reversed because the decision conflicted with Grubbsv. State, 373 So.2d 905 (Fla. 1979). “This Court held that awarrantless search of a probationer’s person or residence by aprobation supervisor is valid to the extent that the evidencediscovered in the search may be used in probation revocationproceedings. Grubbs v. State, 373 So.2d 905, 907 (Fla. 1979).However, in Grubbs we expressly held that evidence obtained in aprobationary search may not be admitted against the probationer in aseparate criminal proceeding unless the search meets customarysearch and seizure standards established under article I, section 12 ofthe Florida Constitution. Id. .... [T]he fourth amendment ordinarilyapplies to a probationer when evidence is used to prove aseparate criminal offense although the probationer’s status givesthe probation supervisor standing to be in locations notordinarily available to law enforcement officers. Further, wheneither probation supervisors or law enforcement officers seek awarrant, the probationary status may be used as a factor to establishprobable cause.” Soca v. State, 673 So.2d 24 (Fla.), cert. denied, 519U.S. 910, 117 S. Ct. 273, 136 L. Ed.2d 196 (1996).

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k. Since the status of a probationer is different, a search of theprobationer's person, residence, and vehicle pursuant to the probationofficer's supervisory function may be considered reasonable, when itwould not be reasonable for other citizens. Under thosecircumstances, the evidence may be admissible in a probationviolation hearing, but not in the trial of a related new charge.Soca v. State, 673 So.2d 24 (Fla.), cert. denied, 519 U.S. 910, 117 S.Ct. 273, 136 L. Ed.2d 196 (1996); McClanahan v. State, 697 So.2d930 (Fla. 2d DCA 1997).

l. The U.S. Supreme Court ruled that “the federal exclusionary ruledoes not bar introduction of evidence seized in violation of theFlorida Amendment at parole revocation hearings. PennsylvaniaBd. Of Probation and Parole v. Scott, 524 U.S. 357, 118 S. Ct.2014, 141 L.Ed.2d 344 (1998).” McCloud v. State, 717 So.2d 132(Fla. 4th DCA 1998)(note 1).

m. The decision on the application of the exclusionary rule to parolehearings is potentially applicable to probation and community controlhearings. The Court ruled that it is not applicable because thedeterrent effect is minimal. If an officer is not deterred byexclusion of the evidence from the criminal prosecution, it isunlikely that an officer would be deterred by its exclusion froma parole hearing. “Where the person conducting the search is apolice officer, the officer’s focus is not upon ensuring compliancewith parole conditions or obtaining evidence for introduction atadministrative proceedings, but upon obtaining convictions ofthose who commit crimes. The non-criminal parole proceeding‘falls outside the offending officer’s zone of primary interest.’”The Court also found that there would be little deterrent if theparole officer did the search. Pennsylvania Bd. Of Probation andParole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344(1998).

n. The Supreme Court has approved the decisions in Scarlett v. State,766 So.2d 1110 (Fla. 3d DCA 2000) and Williams v. State, 791 So.2d37 (Fla. 2d DCA 2001), and ruled that the U.S. Supreme Court’sdecision in Scott does not preclude the applicability of theexclusionary rule to probation revocation hearings. The Courtaffirmed its decision in State v. Cross. State v. Scarlet, 800 So.2d220 (Fla. 2001), cert. denied, 535 U.S. 922, 122 S. Ct. 1217, 152 L.Ed.2d 164 (2002). See also Jacobs v. State, 848 So.2d 1287 (Fla. 2dDCA 2003); Lambert v. State, 811 So.2d 805 (Fla. 2d DCA 2002);

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Szabo v. State, 798 So.2d 912 (Fla. 2d DCA 2001).

o. The trial judge refused to consider the defendant’s motion to suppressevidence ultimately leading to violations based on new charges.Instead, the judge proceeded with the VOP hearing. The stoppingofficer was allowed to testify as to the evidence discovered as a resultof the allegedly unlawful detention. The trial judge found that thedefendant had violated his probation by committing the new charges.“[W]e agree with Lanier that evidence discovered during anunlawful detention and search is not admissible during a hearingto revoke probation. State v. Scarlet, 800 So.2d 220, 221 (Fla.2001)(quoting Scarlet v. State, 766 So.2d 1110, 1111 (Fla. 3d DCA2000)); Williams v. State, 791 So.2d 37, 38 (Fla. 2d DCA 2001).However, because we have found that Lanier’s detention was lawful,the evidence concerning the new law offenses was properlyconsidered by the court and supports the revocation of Lanier’sprobation.” Lanier v. State, 936 So.2d 1158 (Fla. 2d DCA 2006). Seealso Wallace v. State, 964 So.2d 722 (Fla. 2d DCA 2007).

p. A police officer who was not the defendant’s probation officer, butwho knew the defendant was on probation, illegally stopped thedefendant. The court ruled in a violation of probation proceedingthat the exclusionary rule did not apply based on Scott. Onappeal, the court disagreed. Williams v. State, 791 So.2d 37 (Fla.2d DCA 2001), rev. denied, 819 So.2d 140 (Fla. 2002).

q. It was a condition of the defendant’s probation that he submit toa search of his person, property, residence, vehicle, or personaleffects at anytime, with or without a warrant or reasonable causeby any probation officer or law enforcement officer. An officerdeveloped reasonable suspicion to believe that the defendant mightbe involved in arson. The officer was aware of the condition of thedefendant’s probation and felt that he could search thedefendant’s residence without a warrant. The search revealedevidence of the arson. The defendant moved to suppress the evidence.The trial court ruled that the officer had reasonable suspicion, butgranted the motion because the judge concluded that the probationcondition was limited to searches for a probationary purpose andnot for an investigatory purpose. The court of appeals agreed. Onappeal, the U.S. Supreme Court disagreed. The Court found that aprobationer has a more limited privacy interest than other citizens andthat this interest must be balanced against the State’s interest indealing with probationers. “We hold that the balance of these

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considerations requires no more than reasonable suspicion toconduct a search of this probationer’s house. The degree ofindividualized suspicion required of a search is a determinationof when there is sufficiently high probability that criminalconduct is occurring to make the intrusion on the individual’sprivacy interest reasonable.... Although the Fourth Amendmentordinarily requires the degree of probability embodied in theterm ‘probable cause,’ a lesser degree satisfies the Constitutionwhen the balance of governmental and private interests makessuch a standard reasonable. (citations omitted) Those interestswarrant a lesser than probable-cause standard here. When anofficer has reasonable suspicion that a probationer subject to asearch condition is engaged in criminal activity, there is enoughlikelihood that criminal conduct is occurring that an intrusion onthe probationer’s significantly diminished privacy interests isreasonable.” United States v. Knights, 534 U.S. 112, 122 S. Ct.587, 151 L. Ed.2d 497 (2001).

r. The defendant’s probation was revoked based on contraband seizedfrom his home. “The search of Reno’s home was conducted by hisprobation officer when she received information from the police thatReno may have been involved in a burglary of a home in theneighborhood. Although the information implicating Reno in theburglary amounted to little more than a mere suspicion, we agreewith the trial court that the search passed constitutional mustersince it was conducted in good faith within the scope of theprobation officer’s supervisory duties authorized by state law.See Grubbs v. State, 373 So.2d 905 (Fla.1979) (holding that awarrantless search of a probationer’s person or residence by aprobation supervisor is valid to the extent that the evidencediscovered in the search may be used only in probation revocationproceedings); see also Soca v. State, 673 So.2d 24 (Fla.1996) (notingthat Florida’s probation statutes, unlike Wisconsin’s, contain norequirement that a probation officer’s search of a probationer besupported by ‘reasonable grounds’ and, thus, distinguishing theholding in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97L.Ed.2d 709 (1987)).” Reno v. State, 899 So.2d 1244 (Fla. 4th DCA2005).

s. “First, we address Ayoub’s claim regarding condition 21 of theprobation orders and condition 24 of the community control orderswhich state: ‘You will submit to search and seizure of person,automobile and residence at any reasonable time by your probation

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officer without a warrant.’ Ayoub contends that this is a specialcondition that must be orally pronounced at sentencing. In Brown v.State, 697 So.2d 928, 929 (Fla. 2d DCA 1997), this courtdetermined that this condition need not be orally pronounced,noting that ‘probation officers must be able to conductwarrantless searches in order to properly supervise theirprobationers.’ Based on Brown, we reject Ayoub’s claim as tocondition 21 of the probation orders and condition 24 of thecommunity control orders.” Ayoub v. State, 901 So.2d 311 (Fla. 2dDCA 2005).

t. The condition that the defendant “submit blood or otherbiological specimens for DNA testing pursuant to section943.325” did not violate the defendant’s right to be free fromunreasonable searches and seizures. Morris v. State, 909 So.2d428 (Fla. 5th DCA 2005).

u. “The State appeals the trial court’s order suppressing evidence whichserved as the basis for criminal charges against William MichaelYule. The evidence was obtained during the course of a warrantlessprobationary search of a residence shared by Yule and a probationer,Stacy Ellison. We reverse.” Two probation officers went to thepremises after receiving a report that the probationer was dealingdrugs from her residence. Two detectives went with them for security.The P.O. told the probationer they needed to search her residence andthe probationer agreed. While the P.O.s were searching a bedroom,the detectives were talking to Yules in the living room. Whileattempting to properly determine whether Yule had any weapons, adetective saw an item on his person that the detective knew was usedto ingest methamphetamine. The detective did a pat down andretrieved several similar items from Yule. “Yule was arrested andread his Miranda rights.” He then told the detective about othercontraband under the sofa. “[T]he trial court determined thatalthough the warrantless search of the residence was a validprobationary search, the search was limited to a search forprobation violations. The trial court concluded that evidenceobtained in the search would be admissible in a probationrevocation proceeding but not to prove a new criminal offense....Significant to the present case, both Croteau and Grubbs addressedwhether evidence obtained during a probationary search could beadmitted in the prosecution of a new and separate criminal offenseagainst a probationer. The present case has nothing to do withthe use of evidence against a probationer in a new criminal

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proceeding. Instead, this case concerns evidence obtained duringthe course of a probationary search which implicated someoneother than the probationer--evidence which implicated Yule.”The initial entry by the probation officers was proper. They “had theauthority to enter Ms. Ellison’s residence to conduct a warrantlessprobationary search to determine whether she was in violation of herprobation under either federal or state constitutional standards.Compare United States v. Knights, 534 U.S. 112, 122, 122 S.Ct. 587,151 L.Ed.2d 497 (2001) (applying a totality of the circumstances test,the Court held that a warrantless search conducted by a lawenforcement officer, supported by reasonable suspicion andauthorized by a consented-to condition of probation which allowedboth law enforcement and probation officers to conduct a warrantlesssearch, was reasonable within the meaning of the Fourth Amendmentof the United States Constitution and evidence seized during such asearch could properly be admitted in a prosecution on new criminalcharges), with Soca, 673 So.2d at 28 (explaining that in order to strikea balance between the state’s need to supervise probationers and anindividual’s constitutional right to be free from unreasonable searchesand seizures pursuant to Article I, Section 12 of the FloridaConstitution, the ‘Grubbs rule’ authorizes a probation officer toconduct a warrantless probationary search but limits the admissibilityof evidence obtained during the search). Under the FourthAmendment of the United States Constitution, as interpreted inKnights, the reasonable suspicion of the probation officersconcerning criminal activities by Ms. Ellison, which standsunchallenged, provided a sufficient basis for the entry andwarrantless search of the residence. Under Article I, Section 12of the Florida Constitution, as interpreted in Grubbs and Soca,the authority of the probation officers to monitor and control theprobationer, Ms. Ellison, provided a sufficient basis for them toenter her residence and conduct a warrantless search. Eitherway, the probation officers had the authority to enter andconduct a warrantless search of Ms. Ellison’s home. The sheriff’sdetectives accompanied the probation officers during the probationarysearch as a safety precaution. Again, such a precautionary measureviolated neither the Fourth Amendment nor Article I, Section 12under the facts of this case.... We conclude that the interest inofficer safety provided an adequate justification for Yule’s initialdetention and the detective’s inquiry concerning weapons. There is nodispute concerning the events that transpired once Yule wasdetained.” Those events involved lawful police conduct andvoluntary action by Yule. “The probationary search of the

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residence was justified and the detectives properly accompaniedthe probation officers during the search to provide additionalsecurity. To secure the premises and ensure officer safety, thedetectives properly detained and questioned Yule. At each stepalong the way, the probation officers and the detectives acted basedon proper legal authority.” State v. Yule, 905 So.2d 251 (Fla. 2dDCA 2005).

v. “The Florida Supreme Court has held that evidence obtainedthrough a probationary search is admissible in a probationrevocation proceeding, see Grubbs, 373 So.2d at 908, and itsprogeny, and that evidence obtained through an unlawful searchis inadmissible in a probation revocation proceeding, see State v.Scarlet, 800 So.2d 220 (Fla.2001).” State v. Yule, 905 So.2d 251(Fla. 2d DCA 2005).

w. “We note that our record does not establish whether the condition ofprobation in the present case was like that in Knights, a conditionwhich allowed both law enforcement and probation officers toconduct a warrantless search of the probationer’s home. However,under Florida law a condition which permits probationsupervisors to visit a probationer’s home is a standard conditionof probation which may be included in a probation order. §948.03(1)(b), Fla. Stat. (2002).” State v. Yule, 905 So.2d 251 (Fla.2d DCA 2005).

x. Applying reasonable suspicion to trespassers requires more that merepresence on the property. Officer’s observation of men sitting in atruck for 10 to 15 minutes during the day, the men not leaving truck,and no one approaching did not establish reasonable suspicion. Allevidence seized as a result of the stop should have beensuppressed in the VOP. Rochell v. State, 934 So.2d 586 (Fla. 1stDCA 2006).

y. The court reversed the denial of a motion to suppress in a probationviolation case. An officer observed the defendant talking to a man ina hotel parking lot known for drug activity. The officer approachedthe defendant and the defendant voluntarily gave up his identification.Another officer checked the computer and found that the defendantwas on probation. An officer then arrested the defendant for violatinghis probation by being in an area where drugs are unlawfully sold,dispensed, or used. In a search incident to the arrest, the officer foundcocaine on the defendant’s person. It was a condition of the

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defendant’s probation that he “‘shall not knowingly visit placeswhere intoxicants, drugs, or other dangerous substances areunlawfully sold, dispensed, or used.’” There was no evidence thatthe defendant “knew the hotel area was a place where drugs areunlawfully sold, dispensed, or used. Therefore, police did nothave probable cause to arrest him for violating this condition ofhis probation, and evidence found during the search incident tothat arrest should have been suppressed. We are mindful that theUnited States Supreme Court recently held that the FourthAmendment does not prohibit a police officer from conducting asuspicionless search of a parolee. Samson v. California, --- U.S. ----,126 S.Ct. 2193, 2202, 165 L.Ed.2d 250 (2006). However, Samsonexamined a California law which provided that ‘every prisonereligible for release on state parole ‘shall agree in writing to be subjectto search or seizure by a parole officer or other peace officer at anytime of the day or night, with or without a search warrant and with orwithout cause.’ ’ Id. at 2196 (citing Cal.Penal Code Ann. § 3067(a)(West 2000)). There is no similar law in Florida requiring aperson placed on probation to submit to a search, with or withoutcause, by a law enforcement officer. Therefore, Samson does notapply to the case at bar.” Rollins v. State, 948 So.2d 1046 (Fla. 2dDCA 2007).

z. “We initially note that the exclusionary rule is applicable in ahearing to revoke community supervision. See State v. Scarlet, 800So.2d 220, 221-22 (Fla.2001) (determining that the exclusionary ruleis applicable in probation revocation hearings); Lanier v. State, 936So.2d 1158, 1162 (Fla. 2d DCA 2006) (stating that ‘evidencediscovered during an unlawful detention and search is not admissibleduring a hearing to revoke probation’).” The court suppressed theidentification of the defendant because he was unlawfully detained.Garrett v. State, 946 So.2d 1211 (Fla. 2d DCA 2006).

aa. The issue was whether a law enforcement officer unaccompanied bya probation officer could do an investigatory search of a probationer’sresidence based only on reasonable suspicion. The court ruled thatsuch a search was proper. “The Knights court specifically rejectedthe distinction between searches of probationers made for a‘probationary’ purpose and searches made for an ‘investigatory’purpose. Id. at 116-18, 122 S.Ct. 587.... Thus, if we follow Knights,we must conclude that the trial court correctly denied Mr. Bamberg'smotion to suppress. On the issue before us, where law enforcementofficers have reasonable suspicion that a probationer subject to

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a search condition is engaged in criminal activity, Knightsappears to be in irreconcilable conflict with Grubbs. We look tothe conformity clause contained in article I, section 12 of the FloridaConstitution to resolve this conflict.... In accordance with thecommand of the conformity clause, we conclude that Knightscontrols the disposition of this case. Accordingly, we affirm theorder revoking Mr. Bamberg’s probation and his sentence. Tothe extent that Grubbs and Soca suggest a contrary result, thosecases have been superseded by Knights. Bamberg v. State, 953So.2d 649 (Fla. 2d DCA), rev. denied, 966 So.2d 965 (Fla. 2007).

bb. The defendant was accused of violating probation by commission ofa new crime. The defendant argued that the evidence of the new crimewas unlawfully seized. On appeal, the court affirmed trial court’sfinding that the defendant was lawfully stopped for going arounda roadblock. Alphonso v. State, 963 So.2d 287 (Fla. 4th DCA2007).

cc. Police officers developed reasonable suspicion that a probationer haddrugs and guns in his home. The officers and probation officer wentto defendant’s home, did a search, and discovered evidence resultingin revocation of probation. On appeal the court affirmed. Theprobation order here provided for warrantless searches of theprobationer’s residence without probable cause.... The defendantargued the police activity was a pretense so they could “do animproper search of his residence without probable cause. But in Socav. State, 673 So.2d 24 (Fla.1996), the Florida Supreme Court heldthat the evidence obtained in a warrantless search of a probationer’sresidence by a probation supervisor, although tipped-off andaccompanied by a police investigator, was admissible in a probationrevocation hearing, even though it would not be admissible in thecriminal case unless that search met all the usual constitutional searchand seizure requirements. 673 So.2d at 25. In United States v.Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), theUnited States Supreme Court has since held that warrantlesssearches of a probationer’s residence, supported by a reasonablesuspicion but not probable cause, are reasonable under theFourth Amendment. Thus evidence found in such a search maybe admitted even in resulting criminal prosecutions. When Socawas decided by the Florida Supreme Court there had been no suchconstruction of the Fourth Amendment by the United States SupremeCourt.... With Knights, however, conformity to the FourthAmendment would seem to make Florida law identical to federal law.

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Surely, at a minimum, it means that a warrantless search of aprobationer’s residence supported, as here, by a reasonablesuspicion, would allow the evidence thus seized to be used tosupport a revocation of probation.... In light of Knights, it is nolonger necessary for police armed with a reasonable suspicion to gothrough the subterfuge of having the probation officer perform aroutine, ‘administrative’ search of the residence under the warrantlesssearch provision in the probation order.” Benya v. State, 985 So.2d578 (Fla. 4th DCA 2008).

dd. The defendant was on probation. Several probation officers went todefendant’s residence in response to an anonymous tip alleging thepresence of illegal drugs inside defendant's residence. Consent tosearch of resident and person was a standard condition of probationand the defendant was advised of this condition. “For security reasonsand drug identification purposes, the probation officers wereaccompanied by deputies from the ... narcotics unit[.]” The probationofficers went inside and handcuffed Defendant. “Subsequently, thedeputies entered the home and seized hydrocodone pills andmarijuana.” The defendant was charged with a violation of probationand new drug possession charges and was convicted of both. Theparties agree that the evidence was properly used in the VOP.The trial judge denied a motion to suppress on the new charge. TheState conceded that the conviction on the new charge should bereversed. “The defense conceded that, given the express notice ofthe right to search that new probationers receive, the probationofficers had a right both to enter and search probationerAppellant’s home without a warrant, probable cause, or areasonable suspicion of illegal activity there, and to arrest him forviolating a condition of probation. See United States v. Knights,534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); Soca v.State, 673 So.2d 24, 28 (Fla.1996); Grubbs v. State, 373 So.2d 905,908-09 (Fla.1979); Bamberg v. State, 953 So.2d 649, 654 (Fla. 2dDCA 2007).” The issue was not whether the probation officers hadreasonable suspicion. Instead, the defendant argued that thedeputies had no right to enter the residence without a warrantbecause they did not have a reasonable suspicion. “The motion tosuppress asserted that any information known to the deputies beforeentering Appellant’s home was provided by the probation officers.Appellant argued that to allow the deputies to bootstrap theirentry and search of the home to the probation officers’admittedly lawful entry and search would eviscerate Appellant’sFourth-Amendment protection from unreasonable searches and

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seizures[.]...The evidence ... was properly admitted to determinewhether Appellant violated his probation. See Knights, 534 U.S.at 118-20, 122 S.Ct. 587 (noting that the written probation conditionallowing probationer Knights' person, property, residence, vehicle,and personal effects to be searched anytime by any probation officeror law-enforcement officer, with or without a search warrant, arrestwarrant, or reasonable cause, ‘significantly diminished Knights'reasonable expectation of privacy’). The law permits deputies toaccompany probation officers during a search in circumstanceslike the ones here, for ‘the Fourth Amendment does not requireprobation officers to choose between endangering themselves bysearching alone and foregoing the search because they lacked theresources and expertise necessary to search alone safely.’ UnitedStates v. Brown, 346 F.3d 808, 812 (8th Cir.2003); see State v. Yule,905 So.2d 251, 255 (Fla. 2d DCA 2005).” Evidence discoveredduring a search by a probation officer that is supported byreasonable suspicion may be used in prosecution of new charge.Gordon v. State, 1 So.3d 1117 (Fla. 1st DCA 2009).

ee. Defendant’s probation order included a “condition of supervisionrequiring him to submit at any time to warrantless searches by a lawenforcement officer.” This was not orally pronounced. “Section948.03(1)(b) ... provides that a probationer shall ‘[p]ermit suchsupervisors to visit him or her at his or her home or elsewhere.’Condition (9) of the probation order form found in Florida Rule ofCriminal Procedure 3.986(e) provides: ‘You will promptly andtruthfully answer all inquiries directed to you by the court or theofficer, and allow your officer to visit in your home, at youremployment site, or elsewhere, and you will comply with allinstructions your officer may give you.’ Neither the statute nor therule authorizes a law enforcement officer to visit a probationerfor an administrative search without the presence of his or herprobation officer. Therefore, a condition which so provides mustbe orally pronounced.” Newton v. State, 31 So.3d 892 (Fla. 4thDCA 2010).

8. Right to Confront and Cross-Examine witnesses.

a. Crawford does not apply to community control and probationproceedings. Meaning the right of confrontation does not apply.Probationer has a limited right to cross and confront witnesses.Peters v. State, 984 So.2d 1227 (Fla. 2008).

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9. The privilege against self-incrimination.

a. A probationer does not forfeit his fourth amendment right to be freefrom unreasonable searches and seizures or his fifth amendmentprivilege against self-incrimination. “By reason of the probationer’sstatus, however, these rights are qualified rights.” Grubbs v.State, 373 So.2d 905 (Fla. 1995).

b. Applies in a probation revocation hearing only as “to specificconduct and circumstances concerning criminal offenses.” Wherethe defendant testifies, he waives the privilege only as to mattersrelevant to issues raised by his testimony on direct examination.Johnson v. State, 509 So.2d 373 (Fla.4th DCA 1987). See also Statev. Heath, 343 So.2d 13 (Fla. 1977), cert. denied, 434 U.S. 893, 98S.Ct. 269, 54 L. Ed.2d 179 (Fla. 1977).

c. Even though a defendant was not advised of his Miranda rights afterbeing arrested on a new charge, the defendant’s statements wereadmissible “in the context of a probation revocation proceeding”and given the fact that the defendant was apprehended usingdrugs in a restitution and probation center. Cleveland v. State,557 So.2d 959 (Fla. 4th DCA 1990).

d. It was proper for the court to rely on the defendant’s refusal to explainhis absence from his residence as proof of a violation of communitycontrol. In State v. Mangam, 343 So.2d 599 (Fla. 1977), the Courtheld that “‘It was not error for the judge to infer from Mangram’ssilence confirmation of Mangram’s failure to maintain hisresidence at the Pride House and thus the violation of a conditionof his probation.’” Riley v. State, 600 So.2d 40 (Fla. 4th DCA1992).

e. Students were questioned about a crime by an assistant schoolprincipal. Their motion to suppress the statements was granted. Onappeal, the Court held that the defendant was not in custody.“Although they were not free to leave, that restriction stemmedfrom their status as students and not from their status assuspects.” In reaching that conclusion the Court relied uponMinnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409(1984). The Court pointed out that in that case the Court held that“probationer’s obligation to appear before probation officer didnot convert otherwise voluntary statements into coercedstatements.” State v. V.C., 600 So.2d 1280 (Fla. 3d DCA 1992).

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f. “The United States Supreme Court in Minnesota v. Murphy, 466 U.S.420, 426-39 n. 7, 104 S.Ct. 1136, 1147 n. 7, 79 L.Ed.2d 409 (1984)has explained that a probationer may not refuse to answer aquestion just because his answer would disclose a probationviolation; he may only refuse to answer if a truthful answerwould expose him to prosecution for a crime different from theone of which he was already convicted.... It is permissible to orderno contact with children as a condition of probation [if the offenseinvolved children] and to require the defendant to answer whether hehad such contact.... As the Heath court [State v. Heath, 343 So.2d 13,16 (Fla. 1977), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L. Ed.2d179 (Fla. 1977)] said, a probationer may be required to provide allnecessary information for his supervision. He may be required toconfirm or deny his location at a particular place or a particulartime, explain his non-criminal conduct and submit to a search ofhis quarters and of his person; his Fifth Amendment rights relateonly to a separate criminal offense. Id. If a probationer chooses notto answer questions about non-criminal conduct or to submit tosuch searches his probation can be revoked.” Cassamassima v.State, 657 So.2d 906 (Fla. 5th DCA 1995) (en banc).

g. The defendant may even be required to answer incriminatingquestions. In Minnesota v. Murphy, 466 U.S. 420, 435, 104 S.Ct.1136 1146, 79 L.Ed.2d 409 (1984), the Court said: “‘Our casesindicate ... that a State may validly insist on answers to evenincriminating questions and hence sensibly administer itsprobation system, as long as it recognizes that the requiredanswers may not be used in a criminal proceeding and thuseliminates the threat of incrimination. Under such circumstances,a probationer’s ‘right to immunity as a result of his compelledtestimony would not be at stake,’ [citations omitted] and nothingin the Federal Constitution would prevent a state from revokingprobation for a refusal to answer that violated an express condition ofprobation or from using the probationer’s silence as’ one of a numberof factors to be considered by the finder of fact’ in deciding whetherother conditions of probation have been violated.’ ” In this case, theCourt relied on the language from the U.S. Supreme Court opinion,but also concluded that where the defendant claims his or her FifthAmendment privilege, it is then up to the state to decide whetherto require an answer by eliminating the threat of prosecution.Cassamassima v. State, 657 So.2d 906 (Fla. 5th DCA 1995) (enbanc).

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h. The defendant maintained that his attorney was ineffective becausehis attorney did not object when the State called the defendant as awitness. On appeal, the court rejected this argument. “A probationermay not refuse to answer a question, just because the answerwould disclose a probation violation. His or her agreement toaccept the terms of probation effectively waives a Fifth Amendmentprivilege with regard to this information. The privilege is applicableto conduct and circumstances concerning a separate criminaloffense. Here the State Attorney’s questions related to non-criminalconditions of probation only. Therefore, any objection wouldhave been overruled. In Dearing v. State, 388 So.2d 296 (Fla. 3dDCA 1980), the trial court properly required the probationer to testifyat a revocation hearing that he had pled guilty to a federal offensewhile he was on probation.” Perry v. State, 778 So.2d 1072 (Fla. 5thDCA 2001).

i. The defendant was convicted of violating probation by failing toattend a program, which was required by the terms of his probation.The State called the defendant as a witness. “He acknowledged theterms of his probation and his failure to attend the first two scheduledenrollment appointments at FOSI....The issue raised is whether thetrial court properly accepted the juvenile’s admission to theviolation of probation over his counsel’s objection based upon thejuvenile’s fifth amendment right against self-incrimination....Generally, the Fifth Amendment of the United States Constitutionprotects a defendant from being compelled to testify. However, [a]probationer may not refuse to answer a question, just because theanswer would disclose a probation violation. His or heragreement to accept the terms of probation effectively waives aFifth Amendment privilege with regard to this information. Thatprivilege is applicable to conduct and circumstances concerninga separate criminal offense. (Citations omitted). The trial courtproperly overruled defense counsel’s fifth amendment objectionbecause the questions asked were related to the conditions of hisprobation. See id.” E.P. v. State, 901 So.2d 193 (Fla. 4th DCA 2005).

10. The speedy trial rule does not apply to probation revocation proceedings.The defendant's due process rights were not denied by a 15 month delaybetween the filing of the affidavit of violation of probation and thedefendant's arrest. Hall v. State, 512 So.2d 303 (Fla. 1st DCA 1987). Theprovisions of §945.41(3)(a), which provides that where a detainer has beenlodged against an out of state inmate trial must be within 180 days after

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notice has been provided to the prosecution and the court of the place ofimprisonment and request for a final disposition, does not apply to probationviolation proceedings. Subervi v. Miller, 555 So.2d 452 (Fla. 5th DCA1990).

11. Right to counsel.

a. Where a defendant was charged with violating probation by leavingthe state he had no right to counsel in a prehearing interviewconcerning that activity because he had no fifth amendment right toremain silent on the subject. The Court recognized that, pursuant toState v. Hicks, 478 So.2d 22 (Fla. 1985), all defendants have aright during the hearing to counsel, but declined to extend thatright to prehearing interviews where the questions do not involve anycriminal offenses. Register v. State, 514 So.2d 1122 (Fla. 1st DCA1987).

b. Before there can be a waiver of the right to counsel the Court mustconduct a proper Faretta hearing and comply with Rule 3.111(d)(2).Savage v. State, 581 So.2d 205 (Fla. 1st DCA 1991).

c. The defendant was unrepresented by counsel at the beginning of theviolation hearing. The trial judge advised him that the first thinghe needed to do was to decide whether he thought he needed alawyer. The defendant responded by admitting that he hadviolated his probation. The trial judge again raised the issue ofrepresentation and asked the defendant whether he knew that alawyer would be appointed if he could not afford one. It is unclearwhether the defendant had counsel appointed at an earlier stage. Thedefendant admitted that he knew he had the right to counsel andunsuccessfully attempted to explain a justification for the violation.He was sentenced and advised of his right to appeal and right to havecounsel appointed for that appeal. The defendant took no action tohave counsel appointed or to pursue an appeal. Eight months later hefiled a motion for postconviction relief raising the issue concerningcounsel. On appeal, the court found that the issue had been waived bythe failure to pursue the appeal. “From our record, we cannotdetermine whether this hearing was an initial Faretta hearing ora renewal offer of counsel at a subsequent stage in the case....Under either circumstance, it is doubtful that the limited inquirywas sufficient to satisfy the requirement of Faretta.” Kilpatrickv. State, 658 So.2d 1158 (Fla. 2d DCA 1995).

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d. “The court failed to renew the offer of counsel at the beginning of theVOP hearing.... The problem with appellant’s self-representation andFaretta arises out of the fact that there were two separate cases, thenew charges and the VOP proceeding, which were moving forwardduring the same period. At a hearing on December 4, 2003, whichwas about appellant’s motion to dismiss one count of the newcharges, appellant, for the first time, asked the court to be permittedto represent himself. At this point the court conducted the only fullFaretta inquiry, which made appellant aware of the possibleconsequences of self-representation, including the sentences whichcould be imposed if he were convicted on the new charges. Followingthe Faretta inquiry, the trial court permitted appellant to representhimself and appointed standby counsel. The VOP hearing wasconducted on January 26 and 27, 2004. The jury trial on the newcharges had not yet taken place. Appellant represented himself athis VOP hearing, with standby counsel present, and the courtfound that appellant had violated his probation and convictedhim on five counts of possession of drugs or paraphernalia....Although a full Faretta inquiry need not be conducted at every stageof criminal proceedings, once counsel has been waived under Faretta,the offer of assistance of counsel must be renewed by the court ateach subsequent stage of the proceedings.... Needless to say, aVOP hearing is a crucial stage requiring the renewal of the offerof assistance of counsel. (Citation omitted) The state argues thatthe full Faretta inquiry conducted in the case involving the newcharges was applicable to both proceedings. If the offer ofcounsel had been renewed at the beginning of the VOP hearing,we might well agree with the state’s position.... The failure of thecourt to renew the offer of counsel at the beginning of the VOPis not something we can ignore. (Citation omitted) In addition,appellant was never informed, in the VOP case, of the possiblepenalties, if he were found to have violated his probation. A fullFaretta inquiry was done only once, and addressed only the newcharges. Although the lack of the penalty explanation, standing alone,is not necessarily fatal, (Citation omitted) the penalty aspect has beenemphasized in many cases discussing the adequacy of a Farettainquiry. We might well have affirmed these convictions if therehad either been a full Faretta inquiry specifically warningappellant of the dangers of self-representation, including thepenalties in his VOP case, or if there had been a renewal of theoffer of representation of counsel at the beginning of the VOPhearing. We cannot, however, gloss over both of these deficiencies.”Segal v. State, 920 So.2d 1279 (Fla. 4th DCA 2006).

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e. The court reversed revocation of probation on the grounds that thetrial judge failed to make an adequate Faretta inquiry. The defendantsaid he wanted to fire his court-appointed attorney. “After inquiry, thetrial judge found no basis to conclude that defense counsel wasineffective,” and told the defendant that if he insisted on removal hewould have to represent himself. The defendant still wanted theattorney removed. The court removed the attorney and withoutany further inquiry, proceeded with the hearing. The attorneyremained as stand-by counsel. “[O]ur Supreme Court has publisheda model colloquy designed to allow the trial judge to learn of thedefendant’s age, education and mental and physical abilities andconditions, and to advise him or her how a lawyer can be ofassistance. The colloquy also assures that the accused will be warnedthat he or she will not get special treatment, and will have onlylimited available resources, if incarcerated, to aid in the defense....Our high court has acknowledged, however, that while a waiverhearing is the preferred method of addressing the disadvantagesof self-representation, it is not an absolute necessity. See Rogersv. Singletary, 698 So.2d 1178, 1181 (Fla.1996). Rather, the point ofthe inquiry is to determine the defendant’s substantive ‘understandingof the disadvantages and dangers of self-representation’ referenced inthe rule. Perhaps, for example, the trial court is very familiar with thedefendant and his or her understanding of the criminal process, aswell as the proceedings governing it, and is satisfied with thesufficiency of the waiver. Perhaps there are other factors that mightsuggest that the trial court and any reviewing court can be assured thata particular defendant has made a knowing waiver, and possesses thenecessary comprehension of the disadvantages and dangers ofself-representation to satisfy Faretta. If so, Faretta and the rulerequire that the trial court make a sufficient record indicating‘how the defendant’s background, including his age, mentalstatus, and education, affects his competency to waive his right tocounsel.’ (Citations omitted) Here, the Faretta inquiry wasinadequate, and there is nothing in the record to make up for theshortfall. Moreover, the fact that his former counsel acted as stand-bycounsel does not in this instance meet the constitutional requirementsunderscored by Faretta.” McGee v. State, 983 So.2d 1212 (Fla. 5thDCA 2008).

f. The defendant was allowed to represent himself on a VOCCwithout a proper Faretta inquiry. The State argued that the a fullinquiry was not required because of the defendant’s prior

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experience. The court acknowledged that in some cases that has beensufficient for not doing a fully inquiry, but still reversed. “Thesecases focus on the defendants’ legal knowledge, familiarity with thecourt system, or presentation of cases before the court. A trial court’sreliance on such factors to support a knowing and voluntarywaiver of counsel must be express. Flowers, 976 So.2d at 667. Therecord in this case is silent. If the trial court was relying upon factorsjustifying the failure to conduct a Faretta inquiry, specific findingshad to be made.... [W]e conclude that the trial court lacked aproper basis for failing to conduct a Faretta inquiry and aninquiry was mandated after Davis’ unequivocal request forself-representation.” Davis v. State, 10 So.3d 176 (Fla. 5th DCA2009). See also Meredith v. State, 107 So.3d 1218 (Fla. 5th DCA2013).

g. The defendant has the right of self-representation. Baggett v. State,687 So.2d 934 (Fla. 4th DCA 1997).

h. “As in Rodriguez v. State, 982 So.2d 1272 (Fla. 3d DCA 2008), thefailure of the trial judge to conduct a Faretta hearing prior to denyingthe defendant’s unequivocal request to represent himself at theprobation violation hearing, requires reversal of the adversejudgment which followed.” Footnote: “We are unable to draw adistinction between the words uttered by Rodriguez (‘Well, I preferto represent myself.’) and those of Robinson (‘I would ratherrepresent myself.’).” Robinson v. State, 990 So.2d 565 (Fla. 3d DCA2008).

i. Defendant discharged his counsel and told the court that he wantedto represent himself on a VOP. The court determined that Defendanthad never represented himself and had no experience with the law,but the court did not inquire into the Defendant’s capacity torepresent himself and failed to explain the seriousness orpotential outcomes of the VOP hearing. The court failed to makethe inquiry despite the prosecutor’s reminder that the judge needed totell the defendant about the disadvantages of self representation. Thiswas fundamental error. Montgomery v. State, 1 So.3d 1228 (Fla.2d DCA 2009).

j. In a violation of community control case the court reiterated thisprinciple from State v. Hicks, 478 So.2d 22, 23 (Fla. 1985): “‘Wehold that unless there has been an informed waiver thereof sucha person is entitled to counsel, and it must be afforded him before

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he is required to respond in any manner to the revocationcharges.’” The court found, however, that the rule was complied withwhen the court advised all those who were present for violationhearings (i.e. defendants) that the public defender was appointed forthem if they could not afford an attorney or did not have privatecounsel present. Collins v. State, 710 So.2d 55 (Fla. 4th DCA 1998).

k. “This court acknowledged that probation violators do not necessarilyhave a constitutional right to counsel at every stage of a violation ofprobation hearing, as some aspects of these hearings are less formal,and require less constitutional protections than other criminalproceedings. However, we decided [in Hicks v. State, 452 So.2d 606(Fla. 4th DCA 1984), approved, 478 So.2d 22 (Fla. 1985)] that, ‘asa policy matter an entitlement to counsel is essential to ensurereasonable fairness in revocation proceedings.’ Id. At 608. Thiscourt, therefore, held that before a trial court can take a pleafrom a probationer in a proceeding involving a probationviolation, the probationer must be advised of his right tocounsel.” Tyler v. State, 710 So.2d 645 (Fla. 4th DCA 1998).

l. The trial judge advised the group of alleged probation violatorsof the right to counsel and that two public defenders wereavailable. “However, the court then called Defendant and asked himwhether he had committed the violation. The record does not reflectthat the court asked Defendant if he desired counsel or made inquiryto establish an informed waiver.” The defendant admitted theviolation and the trial judge revoked community control. At the timeof sentencing, one of the public defenders spoke up on behalf of thedefendant. On appeal, the court revoked. “In the instant case, thereis no informed waiver in the record.... ‘The mere appointment ofcounsel does not satisfy the requirements of State v. Hicks[citation omitted] where the trial court fails to give that counselan opportunity to counsel his client...’” The court stated that theassistance of the public defender incident to sentencing was too late.The court distinguished Collins because there “the record reflectedthe defendant’s opportunity to consult with counsel andrepresentation by counsel in entering the ultimate plea.” That wasnot true in the case at bar. Tyler v. State, 710 So.2d 645 (Fla. 4thDCA 1998).

m. The right to counsel includes the right to confer with counsel prior toentering a guilty plea. In this case, the attorney was appointed“seconds before the plea and he did not expressly waive his right

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to confer with counsel.” Thus, the plea and sentence were invalid.Edwards v. State, 721 So.2d 744 (Fla. 4th DCA 1998).

n. In a violation of community control proceeding, the trial judgeappointed a public defender on the day of the hearing. The attorneyhad only 10 minutes to consult with her client before the hearing.Despite her repeated requests, the trial judge refused to continue thehearing. On appeal, the court reversed. “The actions of the trialjudge in this case clearly violated appellant’s rights. Ten minutesafter being appointed is simply insufficient time to prepare for aviolation of community control hearing. The attorney did noteven have the opportunity to consult with her client. The trialcourt thus committed a palpable abuse of discretion in denyingappellant's repeated requests to continue the case and set a hearingdate. See Villanueva v. State, 778 So.2d 484, 484 (Fla. 3d DCA2001); Smith v. State, 525 So.2d 477, 479-80 (Fla. 1st DCA 1988);Mato v. State, 278 So.2d 672, 673 (Fla. 3d DCA 1973).” J.S. v.State, 796 So.2d 1256 (Fla. 4th DCA 2001).

o. The fact that the attorney was appointed at the time of thehearing did not mean that the defendant had insufficient time toconfer with counsel. The record reflected that counsel had sufficientknowledge of the matters relating to entry of an admission, andneither the defendant nor his attorney asked for additional time.Crawley v. State, 851 So.2d 739 (Fla. 2d DCA 2003).

p. If the court suspends jail time, the insolvent defendant is entitledto appointed counsel. Alabama v.Shelton, 535 U.S. 654, 122 S.Ct.1764, 152 L.Ed.2d 888 (2002).

q. Before proceeding at the revocation of hearing, the court offered toextend the defendant’s probation and said: “‘Now, that is what wouldhappen if you admit it. If you deny it then you would be entitled to anevidentiary hearing and a Court appointed attorney if you can’t affordone.” The defendant admitted the violation. On appeal, the courtreversed. “The United States Supreme Court has held that a state isnot constitutionally obligated to provide counsel for indigents in allprobation revocation cases. Gagnon v. Scarpelli, 411 U.S. 778, 93S.Ct. 1756, 36 L.Ed.2d 656 (1973). However, Florida has adoptedthe rule that ‘unless there has been an informed waiver [of theright to counsel, a probationer] is entitled to counsel, and it mustbe afforded him before he is required to respond in any mannerto the revocation charges.’ State v. Hicks, 478 So.2d 22, 23

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(Fla.1985). Under Hicks, Brady was entitled to counsel at therevocation hearing before she was required to ‘respond in anymanner to the revocation charges.’ Id. The court’s offer to onlyextend Brady’s probation does not dispense with her right tocounsel. There is no evidence that Brady knowingly and intelligentlywaived her right to counsel.... The denial of Brady’s right tocounsel is fundamental error requiring reversal.” Brady v. State,910 So.2d 388 (Fla. 2d DCA 2005).

r. The defendant’s attorney was granted three continuances on aviolation of probation. “Orta’s counsel requested a fourthcontinuance arguing that she was not prepared to proceed. Afterlistening to his counsel admit she was unprepared, Orta asked thetrial court to appoint new counsel. The trial court denied Orta’srequest for new counsel.... At the conclusion of the hearing, Orta wasfound guilty of violating his probation.... Orta claims that the trialcourt erred by failing to discharge his counsel and to appoint newcounsel. We agree. When a defendant seeks to discharge hiscourt-appointed counsel citing incompetency of counsel, the trialcourt should determine whether there is reasonable cause tobelieve that the court-appointed counsel is rendering ineffectiveassistance. If reasonable cause exists, the court should make sucha finding on the record and appoint a substitute attorney, whoshould be allowed adequate time to prepare a defense. Weaver v.State, 894 So.2d 178 (Fla.2004). Orta’s counsel stated repeatedly thatshe was unprepared to proceed to trial. While counsel’s admissionsof incompetence are not binding on the trial court, the record is clearthat trial counsel had failed to take any of the steps reasonablynecessary to prepare for this hearing. On these facts, Orta had alegitimate complaint about his attorney and reasonable cause existedthat his attorney was not competent to try the case. Accordingly, thetrial court abused its discretion by failing to appoint new counsel forOrta.” Orta v. State, 970 So.2d 478 (Fla. 5th DCA 2007).

s. On a VOP, where Defendant expressed unhappiness with his court-appointed attorney and the trial judge cut the defendant off before hecould complete his statement, the court erred. The court should havedetermined whether the “‘unhappiness’ was due to his belief thatcounsel was ineffective or whether it was simply a generalizedfeeling of unhappiness with counsel.” If it was a complaint thatcounsel was ineffective, the court should have done a Nelsonhearing. The fact that the defendant had a brief off-the-recordconversation with his attorney after which counsel announced they

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were ready for the hearing did not constitute a waiver. Milkey v.State, 16 So.3d 172 (Fla. 2d DCA 2009). See also Montgomery v.State, 1 So.3d 1228 (Fla. 2d DCA 2009)(court abused its discretionin discharging counsel even where motion indicated that it was notbased ineffective counsel; court needed to make thatdetermination on the record and tell defendant that, although hewas entitled to discharge counsel, he was not entitled toappointment of substitute counsel).

t. The court ruled that the trial judge abused his discretion in denyinga request to secure private counsel for representaion on a VOCC. Mr.Brown requested the continuance to seek private counsel. “[A]defendant in a criminal proceeding has a presumptive right tocounsel of his or her choosing under the Sixth Amendment to theUnited States Constitution.” .... Denying a defendant the right tocounsel of his choice, without good cause, is prejudicial per se....Mr. Brown had little to no opportunity to raise this issue prior to thishearing because only two months had passed since his arrest. Also,the record suggests he may only have been in court one prior time, athis first appearance. The trial court made no finding that the basis forhis motion was ‘dilatory tactics.’ And although the trial court heldthat the case had ‘been outstanding long enough,’ this record does notset forth any possible prejudice or injustice to the State had the trialcourt granted a continuance so early in the proceedings. In fact, theState raised no objection to Mr. Brown’s request. Applying thefactors set forth in Rice to the facts of this case, we hold that thetrial court abused its discretion by denying Mr. Brown'srequest.” Brown v. State, 38 So.3d 212 (Fla. 2d DCA 2010).

12. Double Jeopardy Clause & Related concepts.

a. It violates the Double Jeopardy Clause to enhance or aggravate acondition of probation after sentencing. Where the condition ofprobation was that the defendant not “reside” in a certain area, itviolated the foregoing principle for the judge to subsequently interpretthat condition as precluding the defendant from going to his residencelocated in that area, which had been leased, to perform maintenanceon the property. Nickens v. State, 547 So.2d 1289 (Fla. 4th DCA 89).

b. There is authority for the proposition that double jeopardy does notbar the filing of a new affidavit charging the defendant with aviolation of probation by committing a lesser included offense wherethe evidence was insufficient to prove the greater offense alleged in

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the original affidavit. Smith v. State, 502 So.2d 77 (Fla. 3d DCA1987).

c. Revocation of probation for commission of a new crime does not bara subsequent prosecution for the new crime pursuant to the DoubleJeopardy Clause. “[R]evocation of probation for commission of asubsequent criminal offense does not constitute punishment forpurposes of double jeopardy; rather, revocation of probationconstitutes a modification of the terms of the original sentenceand implicates solely the punishment initially imposed for theoffense conduct underlying the sentence.” 127 F.3d at 992. UnitedStates v. Woods, 127 F.3d 990 (11th Cir. 1997).

d. The defendant failed to appear at the county jail as ordered by thecourt. He was prosecuted for a violation of probation for that failureand the state sought to have him held in contempt of court for thesame conduct. The trial judge dismissed the contempt proceedingbased on double jeopardy grounds. On appeal, the Courtaffirmed, stating that: (1) this situation differs from the one in Statev. Newell, 532 So.2d 1114 (Fla. 2d DCA 1988), because that caseinvolved a prosecution for a new crime and violation of probation,which was not a criminal prosecution but rather a proceeding for theviolation of a court order; (2) “the criminal contempt and theviolation of probation solely are based upon [the defendant’s]violation of the same court order;” (3) a contempt proceeding basedon criminal conduct will not bar prosecution for the substantiveoffense committed by such conduct; (4) according to the Blockburgertest in the absence of a clear legislative intent to the contrary multipleconvictions for the same act is impermissible; (5) in this case thecontempt statute, §38.23, and the violation of probation statute,§948.06, do not express such an intent; (6) the contempt andviolation of probation do not require proof of an element that theother does not, thus, the contempt is subsumed by the violation.State v. Woodland, 602 So.2d 554 (Fla. 4th DCA 1992).

e. The trial court’s order revoking probation was reversed because thetrial court abandoned its role as a neutral trier of fact. On remand, thecourt convicted the defendant of the violation and sentenced him toprison. The defendant argued that double jeopardy barred the retrialon the violation. On appeal, the court ruled that nothing in the firstviolation hearing qualified as a final determination of guilt orinnocence. McFadden v, State, 773 So.2d 1237 (Fla. 4th DCA2001), rev’d on other grounds, 819 So.2d 139 (Fla. 2002).

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f. The defendant was held in criminal contempt in the juvenile divisionfor breach of conditions that were imposed as conditions ofcommunity control. The State also sought to punish the defendant forthe same conduct on a violation of community control in the adultdivision. The State claimed that the action in the juvenile divisionwas void. The Second District agreed and found no double jeopardyproblem. On appeal, the Supreme Court disagreed. “We find thejuvenile contempt proceeding to have been at most voidable, notvoid. As such, jeopardy attached once the State participatedwithout objection to the criminal contempt proceeding againstCote, and the court adjudicated Cote in criminal contempt andimposed sanctions. Consistent with the Fifth District’s analysisand holding in N.T., which we approve, Cote could not bepunished for violation of community control on the exact samefacts.” Cote v. State, 793 So.2d 907 (Fla. 2001).

g. In one hearing, the trial judge ruled that the defendant’s failure toassign the proceeds of a civil settlement was not a willful violation.A year later the State pursued the same violation, and the trial judgefound the defendant guilty. On appeal, the court reversed. “As thecourt’s finding disposed of the issue, we conclude that the statewas precluded from charging King with the same violation oneyear later. See Albrecht v. State, 444 So.2d 8, 11-12 (Fla.1984),superseded by statute on other grounds as stated in, 448 So.2d 566(Fla. 2d DCA 1984)(where second suit arises out of same cause ofaction and is between same parties as the first, the first judgment isconclusive as to all matters which were or could have beendetermined under doctrine of res judicata).” King v. State, 835So.2d 1271 (Fla. 4th DCA 2003).

h. “[W]e reverse the revocation order as well as the judgment andsentence entered pursuant to that order, and we remand forreinstatement of Ms. Keith-Schrader to probation. We note,however, that ‘reversal of an order revoking probation on theground that it was based solely on hearsay does not ordinarilybar a second violation hearing based on the filing of anotheraffidavit alleging the same violation.’ Chavous v. State, 597 So.2d943, 944 (Fla. 2d DCA 1992). The State is not precluded from againattempting to prove these violations before the expiration of Ms.Keith-Schrader’s probationary term. See Wilson, 842 So.2d at 238;Grimsley, 830 So.2d at 120.” Keith-Schrader v. State, 891 So.2d1217 (Fla. 2d DCA 2005). See also Lewis v. State, 995 So.2d 1123

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(Fla. 4th DCA 2008).

i. Where revocation was reversed because it was based solely on a newarrest, the State could proceed against the defendant based on thesame circumstances if the term of probation has not expired.Sharpston v. State, 895 So.2d 1225 (Fla. 2d DCA 2005).

j. Where the court reversed revocation because it was based on a chargenot alleged in the affidavit, the State was “free to amend theaffidavit on remand and seek revocation of the defendant’sprobation on the correct charge.” Johnson v. State, 899 So.2d 436(Fla. 4th DCA 2005).

k. The violation of probation was dismissed when the main witness didnot appear. The State sought to pursue an identical charge. Thedefendant argued that the Double Jeopardy Clause barred such action.The District Court disagreed. “Unlike the reversal of a criminalconviction for insufficient evidence, the reversal of a violation ofprobation conviction for insufficient evidence does not ‘bar asecond revocation hearing based on the filing of a new affidavitalleging the same violations.’ Reeves v. State, 366 So.2d 1229, 1230n. 2 (Fla. 2d DCA 1979); see also Robbins v. State, 318 So.2d 472,473 (Fla. 4th DCA 1975). Double jeopardy protection does notoperate in violation of probation proceedings.” Scott v. State, 937So.2d 746 (Fla. 4th DCA 2006). See also Boyd v. State, 1 So.3d1186 (Fla. 2d DCA 2009).

l. The court relied on Boyd and Scott in support of the proposition thatwhere the court finds the evidence insufficient, the protectionagainst double jeopardy does not bar the State from pursuinganother violation based on the same charges unless the term ofprobation has expired. Cerny v. State, 65 So.3d 609 (Fla. 2d DCA2011).

m. The defendant admitted violating probation and the trial judgesentenced him to continue on probation. The court told the defendantbefore sentencing him that if his drug test was positive the net day hewould give him 15 years in prison. The defendant still wanted toadmit the violation. Later on the cases were recalled and the defenseattorney asked the court to give him 30 days to get clean because hemight not be able to past the drug tests. The judge refused andchanged the sentence to 34.5 months prison. On appeal the coursereversed. “Freeman’s sentencing for violation of his probation was

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complete when the trial court continued him on probation andthe proceedings concluded. At that point, jeopardy attached, andFreeman could not legally be sentenced again to harshersentences. (Citation omitted) The fact that apparently a relativelybrief period of time may have passed before the cases wererecalled does not affect the attachment of jeopardy, (citationomitted) and neither does the fact that Freeman admitted that hemight test positive the next day.” Freeman v. State, 980 So.2d 629(Fla. 2d DCA 2008).

n. See cases under modification.

E. Burden of proof.

1. On a violation the state has the burden of showing that the defendant wason probation and knew he was on probation. Sughrue v. State, 597 So.2d935 (Fla. 4th DCA 1992).

2. The state must prove the violation by the greater weight of the evidence ora preponderance of the evidence. Glover v. State, 17 So.3d 886 (Fla. 4thDCA 2009); Conhagen v. State, 942 So.2d 444 (Fla. 2d DCA 2006); Clarkv. State, 579 So.2d 109 (Fla. 1991); McPherson v. State, 530 So.2d 1095(Fla. 1st DCA 1988); Whisler v. State, 569 So.2d 934 (Fla. 1st DCA l990);McCarrick v. State, 553 So.2d 1373 (Fla. 2d DCA 1989); Johnson v. State,561 So.2d 1254 (Fla. 2d DCA 1990); Young v.State,566 So.2d 69 (Fla. 2dDCA 1990); Rathburn v. State, 353 So.2d 902 (Fla. 4th DCA 1977);Young v. State, 519 So.2d 719 (Fla. 5th DCA 1988); Moser v. State, 523So.2d 783 (Fla. 5th DCA 1988); Vezina v. State, 644 So.2d 602 (Fla. 1stDCA 1994).

3. “All that is required to justify revocation of probation is sufficient evidenceto satisfy the conscience of the court that the probation was violated.”Bernhardt v. State, 288 So.2d 490, 495 (Fla. 1974); Adams v. State, 559So.2d 436 (Fla. 1st DCA 1990). See also Davis v. State, 796 So.2d 1222(Fla. 4th DCA 2001).

4. Where the defendant’s probation is being revoked for nonpayment ofsupervision fees, the state has the burden of showing that the defendantwas able to make the payments. Holt v. State, 385 So.2d 1133 (Fla. 5thDCA 1980); Carson v. State, 531 So.2d 1069 (Fla. 4th DCA 1988); Brownv. State, 546 So.2d 1156 (Fla. 5th DCA 1989); Singleton v. State, 820 So.2d404 (Fla. 3d DCA 2002). The probation officer’s statement that she believedthe defendant had been working and that he was able to make some payment

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is insufficient for this purpose. The trial judge must make a specific findingof ability to pay costs. McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA1988).

5. Revocation of probation for failure to pay a fine without a finding of abilityto pay is erroneous. Mains v. State, 544 So.2d 1179 (Fla. 2d DCA 1989).

6. Even where the defendant pled guilty to violating his probation by not

paying the costs of supervision, it was error to revoke his probation onthose grounds where the defendant stated that he had been unable to paythe costs and had been declared insolvent and the state introduced noevidence that the defendant had the ability to pay the costs. Jackson v.State, 546 So.2d 745 (Fla. 2d DCA 1989).

7. Where the defendant was the only witness at the hearing and admittedthat he had not paid restitution, the state had no further burden toproduce evidence to prove that element of the violation. Costello v. State,567 So.2d 1032 (Fla. 4th DCA 1990).

8. As to ability to pay, see coming discussion under sufficiency of the evidenceto prove ability to pay.

F. Rules of evidence.

1. See material above on rights of the defendant.

2. Hearsay.

a. Hearsay is admissible, but it cannot be the sole basis forrevocation of probation. Jenkins v. State, 963 So.2d 263 (Fla. 1stDCA 2007); Wright v. State, 958 So.2d 594 (Fla. 4th DCA 2007);Gaines v. State, 949 So.2d 258 (Fla. 4th DCA 2007); Critsley v.State, 846 So.2d 1255 (Fla. 4th DCA 2003); Hedgespeth v. State,786 So.2d 1286 (Fla. 2d DCA 2001); Ford v. State, 678 So.2d 432(Fla. 4th DCA 1996); Johnson v. State, 667 So.2d 475 (Fla. 3d DCA1996); Vezina v. State, 644 So.2d 602 (Fla. 1st DCA 1994);Chavous v. State, 597 So.2d 943 (Fla. 2d DCA 1992); Frazier v.State, 587 So.2d 660 (Fla. 3d DCA 1991); Rock v. State, 584 So.2d1110 (Fla. 1st DCA 1991), reversed on other grounds, 605 So.2d 456(Fla. 1992); Wearen v. State, 570 So.2d 1081 (Fla. 3d DCA 1990);Glenn v. State, 558 So.2d 513 (Fla. 2d DCA 1990); McCarrick v.State, 553 So.2d 1373 (Fla. 2d DCA 1989); Williams v. State, 553So.2d 365 (Fla. 5th DCA 1989); Brown v. State, 546 So.2d 1156

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(Fla. 5th DCA 1989); Weaver v. State, 543 So.2d 443 (Fla. 3d DCA1989); McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA 1988);Adams v. State, 521 So.2d 337 (Fla. 4th DCA 1988); Davis v. State,510 So.2d 1247 (Fla. 1st DCA 1987).

b. The defendant’s probation could not be revoked based solely on tworeceipts, which were hearsay. Wright v. State, 958 So.2d 594 (Fla.4th DCA 2007).

c. Probation cannot be revoked based solely on hearsay. Green v.State, 620 So.2d 1126 (Fla. 1st DCA 1993). See also Talley v. State,708 So.2d 333 (Fla. 4th DCA 1998).

d. It is error to revoke probation based solely on hearsay. Gomez v.State, 724 So.2d 1205 (Fla. 2d DCA 1998). See also Williams v.State, 728 So.2d 287 (Fla. 2d DCA 1999)(Defendant was accused ofviolating probation by committing battery. Officer who interviewedvictim testified, but victim did not); Soto v. State, 727 So.2d 1044(Fla. 2d DCA 1999).

e. The parties stipulated that the trial judge could decide a violation ofprobation based on evidence adduced at trial on a new charge, whichwas the basis for a violation. The court found on appeal that improperuse of hearsay required a new trial on the new charge, but arevocation of probation would stand because “[A]ll that isrequired to justify revocation of probation is sufficient evidenceto satisfy the conscience of the court that the probation wasviolated.” There was evidence in addition to the hearsay. Adams v.State, 559 So.2d 436 (Fla. 1st DCA 1990).

f. “The evidence adduced here included hearsay evidence of a probationofficer’s statements, but also included appellant’s testimony whichsupported a violation of condition (1) [i.e. he failed to report].Moreover, appellant’s probation file was admitted as an exceptionto the hearsay rule as a business record. See § 90.803(6).” Snell v.State, 658 So.2d 1165 (Fla. 2d DCA 1995).

g. “[A] revocation can be grounded on hearsay evidence combinedwith evidence which is admissible as an exception to the hearsayrule.” Critsley v. State, 846 So.2d 1255 (Fla. 4th DCA 2003).

h. Records of the Bridge Program showing that the defendant haddropped out of the program were admissible under the business

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records exception and were sufficient to establish a violation.Jackson v. State, 799 So.2d 446 (Fla. 5th DCA 2001).

i. “Appellant David Brown challenges the revocation of his probation,claiming that the state failed to prove his status as probationer. Thiscourt previously affirmed the trial court’s revocation of Brown’sprobation, but the supreme court subsequently reversed that decisionand remanded the case to us to consider the application of its holdingin Yisrael v. State, 993 So.2d 952 (Fla.2008). Brown v. State, 7 So.3d528 (Fla.2009). We conclude that the supreme court’s holding inYisrael does not control the disposition of this case. In Yisrael, thesupreme court held that release-date letters issued by theDepartment of Corrections are non-admissible hearsay unlessthey are authenticated and admitted under the public or businessrecords exception. Yisrael, 993 So.2d at 960. In a probationrevocation proceeding, however, the court may freely considerhearsay evidence so long as the decision to revoke is not solely basedon that hearsay.... In this case, the court considered hearsay evidencein the form of an Inmate Release Information Record supplied by theDepartment of Corrections. Insofar as the trial court considered thatdocument, its contents were used to corroborate evidence fromBrown’s court file and records from the Office of Probation and werenot the sole basis for revoking Brown’s probation. Because hearsayis admissible in a revocation hearing, and because the trial courtconsidered the hearsay only as corroborating evidence, Yisraeldoes not apply to this case. A review of the record demonstrates thatthe trial court did not abuse its discretion in revoking Brown’sprobation. The court below was presented with competent evidencethat Brown was the probationer, and the state met its burden of“satisfy[ing] the conscience of the court” that Brown violated hisprobation.” Brown v. State, 18 So.3d 723 (Fla. 4th DCA 2009).

j. “Hearsay is admissible in a probation or community control violationproceeding, but probation or community control may not be revokedsolely on the basis of hearsay evidence. (Citation omitted)Revocation may, however, be based solely upon hearsay evidencethat falls within an exception to the hearsay rule.... The state laidthe foundation necessary for the admission of the GPS data under thebusiness records exception. The state presented the testimony of anemployee of the monitoring company who explained how theelectronic monitoring system worked and how the GPS data from theoffender’s monitoring device is compiled into a computer databasethat the probation officer can access to track the offender’s location

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within an 18-foot radius. Appellant’s probation officer explained howhe accessed the database and printed the exhibits introduced intoevidence that showed, based upon the GPS data, that Appellant wasaway from his residence on June 28, 2009. The officer furthertestified how, on a prior occasion, he took Appellant to differentlocations and checked the electronic monitoring data to ensure thatthe information provided by the equipment was accurate. Appellantrelies on Hogan v. State, 583 So.2d 426 (Fla. 1st DCA 1991), insupport of his contention that the exhibit containing the GPS data isinadmissible hearsay. In Hogan, we determined that laboratoryreports were hearsay and not subject to the business recordsexception because the community control officer testified that shekept the reports as part of the course of business not that shemade the reports during the course of business. Id. However,Hogan is distinguishable because in this case an employee of themonitoring company explained how the GPS data was compiledfrom the monitoring device and Appellant’s probation officerexplained how he downloaded the information and printedreports like the exhibit received into evidence approximatelyevery three days as a normal course of his business as a probationofficer. As such, contrary to Appellant's argument, the records areadmissible under the business records exception.” Ruise v. State, 43So.3d 885 (Fla. 1st DCA 2010).

k. The court contrasted the facts with those in Ruise. The defendant’sprobation was violated for not remaining near his personal trackingdevice. This was based on the fact that the records of the monitoringcompany showed that his device had alerted several times. The courtreversed because the only evidence was the probation officer’stestimony and the report from the monitoring company, but noone from the company testified. Thus, all of the evidence of thealleged violation was hearsay, which did not fall within an exception.And for that reason, the evidence was insufficient. Edwards v. State,60 So.3d 529 (Fla. 2d DCA 2011).

l. “The court’s basis for finding a willful violation in Appellant’sdischarge from the [drug] program was the testimony of the drugtreatment program’s records custodian that Appellant’s chartshowed he tested positive for alcohol. The records, upon whichthe custodian relied, were never introduced into evidence. It iswell-settled that, although hearsay is admissible in revocationproceedings, probation may not be revoked solely on the basis ofhearsay evidence.... Although, here, a proper foundation was laid for

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introduction of the documents, the state did not move them intoevidence. Without these documents, we are unable to determinewhether they would have fallen within the business recordsexception to the hearsay rule as the state suggests.” Thus,defendant’s probation was revoked based solely on hearsay. Bertolotiv. State, 831 So.2d 1281 (Fla. 4th DCA 2002). Reddix v. State, 12So.3d 327 (Fla. 4th DCA 2009)(the evidence was insufficient to showa willful violation for infractions of program rules where all theentries in defendant’s chart came from someone other than thedirector, who was the only person who testified and had nopersonal knowledge of any of the infractions. State had to eitherintroduce the chart through the business records exception orintroduce testimony of someone with personal knowledge).

m. Hearsay testimony is admissible at a probation revocation hearing,but it may not be the sole evidence of the violation. The defendantwas accused of violating his probation by not reporting. The onlyevidence was the testimony of the probation intake officer thather review of the sign-in log which was located in the receptionarea of the probation office, showed that the defendant did notreport as instructed. This evidence was insufficient to prove theviolation. The court noted that the records were never introducedinto evidence. Kipp v. State, 657 So.2d 931 (Fla. 2d DCA 1995).

n. The defendant was accused of violating community control bychanging his residence without permission. The only evidence on thispoint was the testimony of the community control officer that thedefendant’s sister told him that the defendant had moved. Thishearsay was insufficient alone to support a violation. Brown v.State, 659 So.2d 1260 (Fla. 4th DCA 1995).

o. While revocation cannot be based on hearsay that would beinadmissible in a criminal trial, it can be based on a combination ofsuch hearsay and out-of-court statements that would beadmissible as an exception to the hearsay rule in a criminal trial.In this case, the evidence consisted of inadmissible hearsay anddefendant’s out-of-court statement, which would be admissible in acriminal trial as an admission. “The question is not, as appellantseems to believe, whether all of the evidence is generally definedas hearsay, but rather whether there is some evidence to supportrevocation which would be admissible at a criminal trial.”Thomas v. State, 711 So.2d 96 (Fla. 4th DCA 1998). See also M.M.v. State, 839 So.2d 881 (Fla. 4th DCA 2003).

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p. “The defendant also raises the court’s reliance on hearsay to find himguilty of the violation of probation. While probation cannot berevoked solely on hearsay evidence, the juvenile’s admission wasdirect evidence from which the court could properly find him inviolation.” E.P. v. State, 901 So.2d 193 (Fla.4th DCA 2005). Seealso Gaines v. State, 949 So.2d 258 (Fla. 4th DCA 2007); Sylvis v.State, 916 So.2d 915 (Fla. 5th DCA 2005).

q. “[P]robation can be revoked on the basis of hearsay inadmissibleat a criminal trial in combination with evidence admissible as anexception to the hearsay rule.” In this case, the defendant wasaccused of violating his probation by committing an aggravatedassault. The evidence consisted of an excited utterance (i.e. the victimyelled to her daughter that she should call the police because thedefendant had picked up a knife) and a deputy’s testimony that thevictim had told him that the defendant had pointed the knife at her ina threatening matter. This evidence was sufficient. Wilcox v. State,770 So.2d 733 (Fla. 4th DCA 2000).

r. The Court reiterated the principle that hearsay is admissible, but itcannot be the basis alone for finding a violation. Hearsay that fallswithin an exception is not only admissible, but be sufficient to find aviolation. In this case the defendant made a statement through aninterpreter out of court to the community control officer. On appeal,the court said that such a statement could be admissible as anadmission, but the State failed to establish the found for anadmission. “The record is devoid of any evidence that appellant’sstatements were made through a interpreter authorized byappellant to speak for him. According to appellant, thecommunity control officer called someone into his office totranslate their discussion about his whereabouts on December 12.The evidence did not show that appellant either requested theinterpreter or accepted him as his agent. Further, no evidencewas presented as to the interpreter's identity or competence toaccurately translate.” Alarcon v. State, 814 So.2d 1180 (Fla. 4thDCA 2002).

s. The defendant was accused of violating his probation by movingwithout permission, by using drugs, and by committing new offenses.The probation officer testified that the defendant’s landlord said thedefendant had left his approved residence and that the probationofficer received a lab report testing positive for drugs on the

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defendant. The probation officer also said that the defendant admittedthat he had gone to North Carolina and that he had been shootingcocaine. The combination of inadmissible hearsay and admissiblehearsay (i.e. the defendant’s admissions) were sufficient toestablish a violation. Gammon v. State, 778 So.2d 390 (Fla. 2dDCA 2001).

t. “It is well-settled that a trial court may not base its finding that adefendant violated his community control solely on inadmissiblehearsay evidence. (citations omitted.) In this case, the followingevidence supported the trial court's finding that Wilson violated hiscommunity control by absconding from Avon Park: (1) testimony ofWilson's community control officer that Wilson had not completedthe program at Avon Park; (2) testimony of a former communitycontrol officer that she was informed that Wilson had absconded fromAvon Park; and (3) testimony of Avon Park's records custodian thatAvon Park's records indicated that Wilson had left Avon Park againstmedical advice. However, none of this testimony was based onpersonal knowledge; the witnesses all relied on information eithersupplied by other persons who were not called to testify or bydocuments that were not entered in evidence. Accordingly, theevidence was inadmissible hearsay, see § 90.801, Fla. Stat. (2002),and the trial court erred in revoking Wilson’s community controlbased solely on that testimony.” Wilson v. State, 842 So.2d 237(Fla. 2d DCA 2003).

u. Revocation of probation could not be based solely on out-of-courtprior inconsistent statements. Shaw v. State, 710 So.2d 182 (Fla.3d DCA 1998). See also Carpenter v. State, 983 So.2d 760 (Fla. 5thDCA 2008).

v. The defendant was observed approaching a car, pointing somethingand a woman in the car said to her companion, “Oh, my God, he hasa gun.” The defendant was on probation and was accused of violatinghis probation based on the charge of aggravated assault arising fromthese circumstances. At the hearing, the woman testified that she didnot see a gun. The woman’s statement was introduced. The defendantargued that this statement was not sufficient evidence to prove that hehad a gun. On appeal, the court disagreed. The court ruled that sincethe statement was not introduced as a prior inconsistent statement, butrather as an excited utterance, it was admissible as substantiveevidence and could be the sole basis for finding a violation ofprobation. The court cited Williams v. State, 714 So.2d 462 (Fla. 3d

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DCA 1997), rev. denied, 717 So.2d 542 (Fla. 1998), in support of theproposition that an excited utterance is sufficient evidence onwhich to base a conviction. Willis v. State, 727 So.2d 952 (Fla. 4thDCA 1998). See also Bales v. State, 793 So.2d 87 (Fla. 2d DCA2001)(the statement was not admissible as an excited utterancebecause the crime leading to the statement had been committed earlierin the day).

w. The defendant was accused of violating probation by committing abattery. “The victim told Silva she had argued with Arndt, andreported that Arndt had slapped her across her face. Silva testifiedthat he observed redness on the side of the victim’s face and her ear.According to Silva, when he approached Arndt, Arndt refused tospeak with him and was visibly upset. Based on this testimony, thetrial court adjudicated Arndt guilty of violating his probation.” Thecourt found the hearsay, combined with the officer’s (Silva)testimony sufficient. Arndt v. State, 815 So.2d 674 (Fla. 5th DCA2002).

x. The issue “is whether a trial court may find that a violation ofprobation for an alleged battery has been proven by apreponderance of the evidence through a hearsay statement ofthe victim, which would be inadmissible at trial, and non-hearsaytestimony of direct observation of victim injury and attendantcircumstances. It is undisputed that hearsay evidence is admissiblein a probation revocation hearing to prove a violation of probation.However, the hearsay evidence may not form the sole basis forrevocation.... [T]he statements of the victim and the probationer,the type of injury, the demeanors of the victim and theprobationer, and the credibility of the witnesses all factor into thetrial court’s weighing of the evidence.... In the instant case, theFifth District held that testimony at a probation revocation hearingdescribing an observation of injury was sufficient to corroborate abattery victim’s testimonial hearsay statement and that probation wasproperly revoked.... The Fifth District also acknowledged contraryauthority in Santiago, Colwell, and Blair, each of which generallyheld that an observation of injury is legally insufficient to permitrevocation based upon hearsay testimony of battery.... [T]he Secondand Fourth Districts require that the non-hearsay evidenceindependently establish that the probationer committed thebattery. We disagree with such a requirement. Corroboration ofevery aspect should not be required in order to establish that theprobationer committed a battery for the purpose of revoking

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probation. On the other hand, the trial court must examine thefacts and circumstances of each individual case to determinewhether a particular violation is willful and is supported bygreater weight of the evidence. Thus, whether non-hearsayevidence, including direct testimony of an observation of victiminjury, is sufficient to support a hearsay allegation of battery isdependent upon the unique facts and circumstances of each case.Consequently, the trial court must assess the credibility of theparticular witnesses, the reliability of the available evidence, andthe totality of the evidence under the circumstances in eachindividual case. Based on the following facts and circumstances ofthis case, the trial court properly concluded that Russell committed abattery and thus committed a willful violation of his probation terms.The deputy testified regarding the substance of the victim’s oralstatement and stated that he also recognized the written statement ofthe victim, which was admitted at the hearing. The substance of thehearsay statements alleged that Russell struck the victim on the neckand grabbed her by the hair before leaving with her vehicle. Russellfirst objected to the written statement as hearsay within hearsay, thenobjected based on a violation of his Sixth Amendment right toconfront his accuser. The trial court reiterated that hearsay isadmissible in a revocation proceeding but could not be the soleevidence used to find a violation. Additional testimony from thedeputy established that he observed a red mark on the victim’sneck that appeared to have been made by a fist. He also testifiedthat the victim seemed nervous and scared. Even though Russellinitially did not want to make any statements, after being read hisMiranda rights he began a conversation. The deputy testified that onthe way to jail, Russell advised him that he knew the victim waspregnant, but he was not sure if it was his baby or not because thevictim was messing around on him. The deputy further testified thatRussell stated that he does not hit the victim but just ‘roughs her up.’Cross-examination revealed that the deputy’s report did notaffirmatively state that Russell had been read his Miranda rights anddid not refer to his knowledge of the victim’s pregnancy. However,the deputy stated that he remembered this particular case becauseRussell began to cry in the squad car. Although Russell did not testifyregarding the battery charge, the trial court had an opportunity toweigh his credibility when he testified regarding the willfulnesselement of the remaining probation violation allegations, whichultimately were not found by the trial court. Thus, the trial courtconsidered more than just the victim's hearsay statement and directtestimony of observation of victim injury. The trial court heard

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testimony regarding the demeanor of both the victim and Russell.The court was able to compare both the oral and written hearsayaccounts to the type of injury described by the deputy, and thecourt was able to directly assess the credibility on the stand ofboth Russell and the deputy. Accordingly, we find that the trialcourt did not abuse its discretion in concluding that the greaterweight of the evidence demonstrated that Russell committed abattery and thus committed a willful and substantial violation ofthe terms of his probation. As a result, we disapprove the decisionsof the Second District and Fourth District in Santiago, Colwell, andColina, to the extent that they conflict with this decision.” Russell v.State, 982 So.2d 642 (Fla. 2008).

y. The court relied on the decision in Russell in support of its decisionaffirming the violation. The defendant was found to have violated hisprobation by committing battery on a person over 65. The evidenceconsisted of the taped statement of the victim under oath, pictures ofthe injuries, testimony of two police officers regarding the incident,and the victim’s reactions at the show-up. Because of the tapedstatement under oath the judge was able to hear the intonations ofvoice and assuredness. Russell’s essential holding is “that each casemust be judged by its unique facts and circumstances but thatcorroborating non-hearsay evidence of each element of the batteryused to revoke probation is not required.” Nugent v. State, 45 So.3d528 (Fla. 4th DCA 2010).

z. The court relied on Russell in support of the proposition that whilehearsay is admissible in a VOP hearing, it cannot form the sole basisfor finding a VOP. In this case, the court reversed revocation for anew charge of trafficking in cocaine because it was based solely onhearsay. Lee v. State, 67 So.3d 1199 (Fla. 2d DCA 2011).

aa. The court recognized that drug possession charge based on hearsayonly cannot be the basis for revocation. But the court says somethingelse that is very important especially since hearsay is admissible inviolation of probation proceedings. “[H]earsay which is not subjectto an objection is admissible and may be as probative as othernon-hearsay evidence.” Bray v. State, 75 So.3d 749 (Fla. 1st DCA2011).

bb. “Hearsay evidence in the form of a victim’s statement, combinedwith nonhearsay evidence corroborating the statement, is oftensufficient to support a violation of probation.... In this case, Boyd’s

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probation officer presented hearsay evidence of the circumstancesleading to Boyd’s arrest for battery. However, this hearsaytestimony was not supported by testimony from an arrestingofficer, direct observation of victim injury, or a statement fromthe victim either through hearsay or direct testimony. The onlynonhearsay evidence was presented by Boyd, whose testimonyestablished only that he and his pregnant girlfriend argued and that abroken knife was on the floor of the apartment. This evidence isinsufficient to support the hearsay testimony of battery presented bythe probation officer.”Boyd v. State, 1 So.3d 1186 (Fla. 2d DCA2009).

cc. The court violated probation based on a new charge of felon inpossession of a firearm. “Thompson and a co-defendant, LouiseDesusa, were in a car rented by Thompson. Desusa drove, andThompson was identified by the victim (an officer surveilling thedefendants, their car, and the crime scene before shots were firedfrom the car).” The State was allowed to introduce a tape-recordedstatement given by Desusa saying Thompson was the shooter. Onappeal the court said that the evidence need only be sufficient tosatisfy the conscience of the court “This process of satisfying thecourt’s conscience should be ‘flexible enough to consider evidenceincluding letters, affidavits, and other material that would not beadmissible in an adversary criminal trial.’ (Citations omitted).Hearsay evidence is admissible at probation revocation hearings aslong as it is not the only evidence relied upon to revoke probation....As Russell instructs, non-hearsay evidence need not directly linkthe probationer to the alleged violation. Id. at 647. Rather, thenon-hearsay evidence should be sufficient to support a hearsayallegation. Id. As a result, the trial court ‘must assess thecredibility of the particular witnesses, the reliability of theavailable evidence, and the totality of the evidence under thecircumstances in each individual case.’ Id. Here, hearsay evidencewas admitted at Thompson’s revocation proceeding: Desusa’sallegation that Thompson was the shooter. This was not the onlyevidence, however. Non-hearsay evidence also was introduced,revealing that: Thompson fled the scene after the shooting occurred;both Thompson and Desusa tested positive for gunshot residue,linking Thompson to the vehicle driven by Desusa; a firearm waslocated near the spot where Thompson was apprehended; otherfirearms were found on the passenger seat of the vehicle and on thepassenger seat floor, including the gun fired during the shooting;Thompson was barefoot when he was arrested; one of his shoes was

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found in the vehicle driven by Desusa; the other shoe was found nearthe spot where Thompson was caught; the car driven by Desusa wasrented by Thompson, evidenced by a registration, rental agreement,and insurance card all bearing Thompson’s name; and finally, Desusawas observed unarmed while the shooting was taking place. WhileDesusa did not testify, Florida law does not require that everywitness, or even the victim of the underlying crime that is thealleged probation violation, be available for cross-examination ata probation revocation hearing. See id. at 642. The credibility ofthe witnesses who did testify, as well as the totality of the evidence,were fully examined by the trial court. Thompson’s flight, thegunpowder residue on his hands, the fact that the vehicle wasrented in his name, and the fact that he is a convicted felon wereenough, at a minimum, to find that he possessed a firearm, aviolation of one of his probation conditions.” Thompson v. State,994 So.2d 468 (Fla. 3d DCA 2008).

dd. The defendant was convicted of violating probation by committing anaggravated domestic assault on her husband with a kitchen knife. Onewitness (Rose) testified “that Kalmbach grabbed a knife and chasedher husband. “Kalmbach argues that Rose’s testimony was legallyinsufficient because Rose never testified that she saw Kalmbachswing the knife at her husband or verbally threaten him. Thisargument is unpersuasive because the non-hearsay evidence doesnot have to independently establish the probation violation; itneed only support the hearsay evidence. See Russell v. State, 982So.2d 642, 646 (Fla.2008). In this case, the hearsay evidence, mostnotably Kalmbach’s husband's recorded statement, indicated thatKalmbach cornered her husband in the living room while wielding akitchen knife. Rose’s testimony supported the hearsay evidence and,therefore, the trial court did not abuse its discretion in findingKalmbach violated her probation.” Kalmbach v. State, 988 So.2d1279 (Fla. 5th DCA 2008).

ee. The defendant in this case was accused of violating probation bycommitting a battery. The witnesses to the battery were not present atthe hearing, but the probation supervisor testified as to the descriptionof the incident that the victim gave. That description was sufficientto establish a battery, but it was only hearsay. Hearsay is admissiblein a violation of probation hearing, but it cannot be the sole basisfor the violation. In this case, however, the deputies who respondedto the scene gave detailed testimony as to what they saw at the scene.They saw broken glass and shelves on the floor at the scene; the

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victim curled up on a chair with a bruise and a bite mark on her arms.The victim and child were crying and appeared to be frightened. Thedefendant was belligerent and violent. This evidence corroboratedthe hearsay and the hearsay and corroboration together wassufficient to find a violation of probation. Morris v. State, 727So.2d 975 (Fla. 5th DCA 1999).

ff. The defendant was accused of violating community control bycommitting domestic violence on his wife and being away from hisresidence. The only evidence was a recording of a police interviewwith the wife and her mother and the officer’s testimony that thewife had been crying and had red marks on her face. The wifesaid on the tape that the defendant had slapped her with an open hand.On appeal, the court ruled that the evidence of either violationwas insufficient because it was solely hearsay. “In the case subjudice, the trial court relied upon the victim’s and the victim’smother’s hearsay statements and the circumstantial evidence of redmarks on the victim’s face. [A]lthough the victim’s injuries suggestedto the deputy that a battery may have occurred, the deputy’sobservations could not connect Santiago to the alleged battery.Moreover, that the red marks on her cheek may have resulted fromSantiago’s slap suffers from the same hearsay deficiency as theremainder of the State’s case. It is quite possible that there isanother explanation for the red marks wholly independent ofSantiago. Likewise, the only evidence placing Santiago away fromhis approved residence was hearsay. Therefore, we find that the trialcourt abused its discretion in revoking Santiago’s probation on theseviolations.” Santiago v. State, 889 So.2d 200 (Fla. 4th DCA 2004).

gg. The trial court found that the defendant violated his probation bybattering his wife. On appeal, the court reversed. The evidenceconsisted of a 911 call from the wife which the trial court never ruledwas an excited utterance and an officer’s testimony as to the scene.“Furthermore, although the wife’s physical appearance and theappearance of her residence suggest a battery occurred, the officeracknowledged the ‘irritated spot’ on the top of the wife’s head ‘couldhave been anything.’ The officer also admitted there was no blood onthe cell phone to corroborate the victim’s story that the abrasion onher face was caused by Beck hitting her with the item. The officer’sobservations were consequently insufficient to connect Beck to thealleged battery and this case is therefore analogous to Santiago v.State, 889 So.2d 200 (Fla. 4th DCA 2004).... In light of theforegoing, we conclude that only uncorroborated hearsay

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testimony supported the finding that Beck committed battery onhis wife and thus violated his probation.” Beck v. State, 937 So.2d821 (Fla. 4th DCA 2006).

hh. The defendant was accused of violating probation by committing thenew crime of possession of drugs with intent to sell. The evidenceconsisted of hearsay and nonhearsay. The hearsay was that officerstestified that an informant described a conversation in which thedefendant agreed to provide drugs at a specific time and place and theinformant said “‘oh that’s him’” when she allegedly saw thedefendant. The nonhearsay was that the defendant was at the locationwhen another person he was with delivered the drugs. The defendantgave an unrebutted innocent explanation. The court reversed therevocation of probation. “The State reasons that this hearsayevidence, combined with the non-hearsay evidence that appellantshowed up at the place where the drugs were to be sold and seemedto know the informant, is sufficient to establish that appellantcommitted the drug offenses.... The State’s only direct evidence ofappellant’s involvement in the charged violations was a hearsaystatement from the confidential informant that she spoke to appellantwhen she set up the drug transaction.’ While probation may berevoked based on a combination of hearsay and nonhearsayevidence, when the State seeks to revoke probation based on thecommission of new offenses, it must present direct, nonhearsayevidence linking the defendant to the commission of the offenseat issue.’ (Citation omitted) Based upon the lack of non-hearsayevidence establishing the essential elements of the criminaloffenses at issue, i.e., knowledge, custody and control of the drug,and intent to sell, we conclude the trial judge abused hisdiscretion in revoking appellant’s probation.” Ratliff v. State, 970So.2d 939 (Fla. 4th DCA 2008).

ii. The court violated probation based on a new charge of domesticbattery. “The officer testified that upon his arrival, he witnessed thedistressed victim together with Seays in a closed bedroom. He alsointroduced the victim’s hearsay statement that Seays kicked andslapped her as well as photographs depicting the victims appearanceat the scene where he observed ‘redness and swelling’ on the left sideof her face.... We find ... in light of the officer’s non-hearsaytestimony, the victim’s hearsay statement, as well as Seays’s nocontest plea (to the domestic battery)that there was substantialcompetent evidence to support Seays’s violation of probation.”Seays v. State, 963 So.2d 890 (Fla. 4th DCA 2007).

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jj. It was a condition of defendant’s probation that the defendant nothave any contact with children under sixteen until he completed a sexoffender program. When the defendant was released from prison, hewas allowed to move to California. His brother had told the probationofficer that there were no children living in his home. The defendantwas to live in the home. The probation officer gave the defendantpermission to live in California while a home investigation was beingcompleted, but if the California authorities did not approve theprobation plan the defendant would have to return to Florida. Theprobation officer called the brother and found out that the defendantwas not living with him. The brother informed the probation officerthat there were small children in the home, but he had lied in order tohelp the defendant get permission to travel. The brother also said thedefendant knew about the lie. The defendant called the probationofficer to tell him that he was living in a trailer because when he gotto his brother’s house he found that the little children were livingthere and he knew it would violate his probation to stay with them.The probation officer told the defendant that the California authorityhad rejected his probation plan and that he would have to return toFlorida immediately. The defendant asked for more time because hedid not have enough money to return. The probation officer refusedand the defendant was extradited on a violation of probation. The trialjudge found that the defendant had violated his probation by movingfrom his brother home without permission and by lying to theprobation officer about there being no children living with hisbrother. On appeal, the court reversed. The only evidence that thedefendant had lied was the testimony of the probation officer asto what the defendant’s brother had said. The defendant testifiedthat he did not know about the children being there. Thus, thetrial judge erred in revoking the defendant’s probation on thosegrounds. Soto v. State, 727 So.2d 1044 (Fla. 2d DCA 1999).

kk. A witness made an out-of-court statement that would have beensufficient to establish a violation of probation, but at the hearing thewitness testified contrary to the statement. That out-of-courtstatement was the only evidence that the defendant had violated hisprobation. On appeal, the court ruled that the statement was onlyan inconsistent statement that could be used as impeachment, butit was not sufficient to establish guilt. McFarland v. State, 764So.2d 834 (Fla. 5th DCA 2000), rev. denied, 767 So.2d 458 (Fla.2000).

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ll. “Although hearsay evidence is admissible in a probation revocationhearing, it cannot be the sole basis of the revocation. (citationsomitted) The record reveals that the only evidence linking Blair to thecommission of a battery was the hearsay testimony of the deputyconcerning what the victim said had occurred. While the victim’sphysical state and the appearance of the residence suggested to thedeputy that a struggle had occurred, the deputy’s observations couldnot connect Blair to the alleged battery. The State also argues thatthe victim’s statements were admissible under the excitedutterance exception to the hearsay rule. See § 90.803(2), Fla. Stat.(1997). In the trial court, the State did not assert and the trialcourt did not make a factual finding that the statements wereexcited utterances. See Stoll v. State, 762 So.2d 870, 873-74(Fla.2000). Without the necessary predicate for admission of thestatements as excited utterances, we must reject this argument. Id. Because inadmissible hearsay testimony was the sole evidencethat Blair had committed a battery, the revocation of probation on thatground was improper.” Blair v. State, 805 So.2d 873 (Fla. 2d DCA2001).

mm. The sole evidence that the defendant had committed a new crime wasthe officer’s account of the alleged victim’s statement and theofficer’s observation that the alleged victim had a red mark on herneck and was hysterical. The trial judge refused to rule whether theout-of-court statement was admissible as an excited utterance.“Instead the trial court found that there was additional evidence toprove the domestic battery--the red mark on Mrs. Colwell’s neck thatwas consistent with her statements to the deputy and her hystericaldemeanor. As a matter of law, this additional evidence wasinsufficient to sustain the revocation.... [W]hile the faint red markon Mrs. Colwell’s neck and her behavior may have suggested thatimproper contact occurred, the deputy’s observations alone didnot provide a sufficient evidentiary link to the perpetrator of thealleged domestic battery. That the red mark on her neck mayhave resulted from Mr. Colwell grabbing her suffers from thesame hearsay deficiency as the remainder of the deputy'stestimony. Furthermore, Mrs. Colwell’s hysterical demeanor mayhave been due to her intoxicated state; her hysteria does nototherwise prove the domestic battery.” Thus, the court reversed.Colwell v. State, 838 So.2d 670 (Fla. 2d DCA 2003).

nn. The trial judge revoked the defendant’s probation based solely uponhearsay evidence deemed admissible under section 90.803(23). That

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is the child abuse hearsay exception. On appeal, the court reversedbecause the record did not establish the foundation for theapplication of that exception. The reader should review theopinion for details. Thomas v. State, 760 So.2d 1138 (Fla. 5th DCA2000).

oo. Where the sole evidence that the defendant had been told that hehad to attend an inpatient treatment program was hearsay (i.e.one probation officer reading the notes of another), and thedefendant had not signed the probation order, violation on thegrounds that he did not attend such a program was improper. Hinesv. State, 789 So.2d 1085 (Fla. 2d DCA 2001).

pp. The affidavit of a sheriff’s deputy filed in a separate case whereinthe defendant was charged with a new offense was hearsay andcould not be the sole basis for revocation. Davis v. State, 831So.2d 792 (Fla. 5th DCA 2002).

qq. “In Thomas, this court held that probation can not be revoked basedsolely on hearsay, but may be revoked upon a combination of hearsayand non-hearsay evidence.... Initially, Lacey was put in the Browardjail to await an opening at a rehabilitation center, the Turning Point.The officer explained that he personally observed that Lacey wasnot at Turning Point, and he was also informed by someone thatshe was not there. Hence, there was a combination of hearsay andnon-hearsay evidence supporting the trial court’s conclusion thatLacey was not at the center. This court has repeatedly affirmed atrial court’s revocation of probation for the probationer’s failure toremain at a particular location. See. e.g., Lopez v. State, 722 So.2d936 (Fla. 4th DCA 1998). As a result, had the issue been preserved,we would still affirm the violation of Lacey’s probation.” Lacey v.State, 831 So.2d 1267 (Fla. 4th DCA 2002).

rr. Defendant was accused of violating probation by using drugs. Theonly evidence was the testimony of the probation officer, whotestified that he took a urine sample, sent it to the lab, and it cameback positive. The evidence was insufficient because it consistedsolely of hearsay. Robinson v. State, 842 So.2d 892 (Fla. 2d DCA2003).

ss. “The State bears the burden of proving a willful and substantialviolation of supervision. Although hearsay evidence is admissibleat the revocation hearing, the defendant’s probation or

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community control cannot be revoked solely on the basis ofhearsay. Knight v. State, 801 So.2d 160 (Fla. 2d DCA 2001).... Inthis case, the State called Thompson’s supervising officer as its onlywitness. The officer testified that he was informed that Thompsonwas being discharged from the treatment program; the officer alsotestified that he had ‘contacted the center on several times, spokenwith different people and the statements [were] all the same that thedefendant did not comply with the rules and regulations and,therefore, [was] administratively discharged.’ This testimony washearsay.... Therefore, we reverse.” Thompson v. State, 890 So.2d382 (Fla. 2d DCA 2004).

tt. The defendant was accused of violating probation by making falsereports to a police officer concerning what he had been doing. Theprobation officer testified as to those violations. This testimonyconsisted of what others had told the probation officer concerning thedefendant’s employment and involvement in education programs.Lanier objected to all of this testimony on the grounds that it washearsay. The trial judge found the defendant guilty of these violations.On appeal the court reversed. “Although it is true that hearsayevidence is admissible at a revocation hearing, revocation may not bebased solely on hearsay evidence. Thompson v. State, 890 So.2d 382,383 (Fla. 2d DCA 2004); Clemons v. State, 388 So.2d 639, 640 (Fla.2d DCA 1980). In Thompson, this court held that testimony fromThompson’s probation officer as to what the officer was told by‘someone’ at a drug treatment program about Thompson’s attendancewas pure hearsay that could not support the revocation ofThompson’s probation. 890 So.2d at 383. Similarly, in Clemons, thiscourt noted that the only evidence of Clemons’ alleged violation was‘the hearsay testimony of the probation supervisor about whatappellant’s employer had said in a telephone conversation.’ 388 So.2dat 640. This court held that this type of testimony, which was purehearsay, was insufficient to support the revocation of Clemons’probation. Id. Here, as in Thompson and Clemons, the onlyevidence of Lanier’s alleged violations concerning hisemployment and schooling was the testimony of his probationofficer concerning what Lanier’s employer allegedly said in atelephone conversation about his employment and what a schoolcoordinator allegedly said in a telephone conversation about hisattendance. As hearsay, this testimony was insufficient, standingalone, to support a finding that Lanier violated these conditionsof his probation.” Lanier v. State, 936 So.2d 1158 (Fla. 2d DCA2006).

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uu. The defendant was accused of violating probation by failing to report,but the only evidence was testimony from a probation officer whohad never met the defendant, and was testifying from anotherofficer’s notes. That was hearsay and was insufficient for revocation.But there was both hearsay and nonhearsay as to the claim thedefendant moved his residence and that was sufficient.Thompson v. State, 965 So.2d 1250 (Fla. 1st DCA 2007).

vv. The defendant appeals an order revoking her probation based onsubmission of an untruthful report, which omitted two new arrests. Awritten monthly report and arrest affidavit were received inevidence. “Without personal knowledge, the probation officerdeduced that the prior officer had instructed the defendant on theterms of her probation. The officer then testified that the defendanthad signed the written monthly report outside of her presence. Theofficer also testified that she had visited the defendant at her homewhere the defendant told her she had not been arrested. When thedefendant met with the officer in the office, she again told the officerthat she ‘didn’t break any law,’ but had been ‘in the hospital.’ Theofficer testified that she received a probable cause affidavit showingthat the defendant had been arrested. The officer checked and foundout that a charge was pending against the defendant in Dade County.However, the officer explained she was not present during thearrest.... Here, only hearsay evidence was presented to prove thedefendant had been arrested for new charges. The probationofficer based her testimony on supposition, the probable causeaffidavit, and the court file. She had no personal knowledge ofthe alleged new arrest. Information ‘contained in police reportsis ordinarily considered hearsay and inadmissible in anadversary criminal proceeding.’ Burgess v. State, 831 So.2d 137,140 (Fla. 2002). Arrest affidavits are ‘not admissible into evidenceas a public record exception to the hearsay rule.’ Id.; see §90.803(8), Fla. Stat. (2007).... The trial court erred ... when it foundthe defendant had violated probation by failing to report an allegedarrest that was not established by non-hearsay evidence.” Lewis v.State, 995 So.2d 1123 (Fla. 4th DCA 2008).

ww. Defendants probation was revoked for using cocaine. Communitycontrol officers took a urine sample, which was sent to anindependent laboratory. The lab issued a written report indicating thatthe urine tested positive for cocaine. Defendant argued that the reportand the testimony of the community control officers “that the

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urinalysis conducted by them produced a positive result washearsay testimony. Revocation was thereafter ordered on thebasis of this laboratory report and the testimony of thecommunity control officers.” The court held that this evidence washearsay and, while it was admissible, it could not be the sole basis forrevocation. “While both officers testified that they had conductedhundreds of urinalyses, neither testified as to any expertise as tonarcotics or drug testing. Under such circumstances, theirtestimony was hearsay... The case at bar is distinguishable fromBranch v. State, 837 So.2d 568 (Fla. 4th DCA 2003), as there is noindication in that case that the probationer lodged a hearsay objectionto the in-office test conducted by the probation officer. Of course,hearsay which is not subject to an objection is admissible andmay be as probative as other non-hearsay evidence.” (Citationomitted). Bray v. State, 75 So.3d 749 (Fla. 1st DCA 2011).

xx. Defendant argues that modification of community control should bereversed because it was based on hearsay from his community controlofficer as to urinalysis and lab test results. The court affirmedbecause Defendant also admitted possessing cocaine. “A court maynot rely only on hearsay evidence to find a violation of communitycontrol. (Citations omitted). But hearsay may be used in suchproceedings to supplement or explain competent, non-hearsayevidence. (Citation omitted). Here, the officer’s testimony about theresults of the drug test she performed on Rothe is hearsay for sheadmitted on cross-examination that she has no specialized training,expertise or certification in drug testing. See Bray v. State, 75 So.3d749 (Fla. 1st DCA 2011); cf. Terry v. State, 777 So.2d 1093, 1094(Fla. 5th DCA 2001) (probation officer’s testimony about resultsof field drug test sufficient to support finding of violation ofprobation where officer possessed state certification to administersuch tests). The same is true of her testimony about the results of theindependent laboratory test. (Citation omitted). But the trial court’sfinding that Rothe violated community control does not rest only onthis evidence.... [Rothe] acknowledged he had cocaine in his systembut claimed it came from handling bags of cocaine he found strewnaround his yard. Rothe’s admissions constitute sufficientnon-hearsay evidence of cocaine possession allowing the trialcourt to consider and rely on the hearsay test results.” Rothe v.State, 76 So.3d 1010 (Fla. 1st DCA 2011).

yy. “Ray Edward Carter appeals an order revoking his probation for‘using intoxicants to excess or possessing any drugs or narcotics.’ At

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issue is whether the state put on competent evidence at the probationrevocation hearing sufficient to prove that he used or possessedcocaine while on probation.... The state had the burden to prove, bya preponderance of the evidence, that Mr. Carter had committed awillful and substantial violation of a condition of his probation. SeeVan Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996).‘Hearsay is admissible in probation revocation proceedings, butcannot be the sole basis for revocation.’ Hogan v. State, 583 So.2d426, 427 (Fla. 1st DCA 1991) (citing Bass v. State, 473 So.2d 1367(Fla. 1st DCA 1985)). Because the laboratory test results werehearsay, and Officer Guedez was not qualified to interpret theresults of the field test, the state did not put on sufficient,competent evidence to prove that Mr. Carter used or possessedcocaine or any other drug or narcotic.” Carter v. State, 82 So.3d993 (Fla. 1st DCA 2011).

zz. In a VOP hearing the witness did not remember identifying thedefendant as the perpetrator of the crimes constituting the violation,but he did recognize his handwritten statement. It did not refresh hismemory. “Officer J.G. testified that T.R. verbally identified Robinsonas the perpetrator during a show up shortly after the crime. He furthertestified that T.R. gave a written statement in which he identifiedRobinson as the perpetrator of the crimes.” The evidence of the newcrimes was sufficient because the ‘officer could testify undersection 90.801(2) that a witness to a crime identified the accusedby name, as the perpetrator at the initial investigationimmediately following the incident’. Therefore, the trial courtwas correct in admitting the testimony of Officer J.G. that T.R.made prior out-of-court statements, verbal and written,identifying Robinson as the perpetrator. We agree with the trialcourt: the violation was based on both a ‘hearsay and non hearsayidentification [ ] that Mr. Robinson was the one who fired the gun.’”Robinson v. State, 74 So.3d 570 (Fla. 4th DCA 2011).

3. Records.

a. Records of the probation department may, with the showing of aproper predicate, be admitted into evidence under the businessrecords exception to the hearsay rule, but where those recordsare not introduced and the sole evidence of a violation is the hear-say testimony of the probation officer the defendant’s probationcannot be violated even for nonpayment of the supervisory costs.The hearsay is admissible, but it cannot be the sole basis for

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revocation. Brown v. State, 546 So.2d 1156 (Fla. 5th DCA 1989);Adams v. State, 521 So.2d 337 (Fla. 4th DCA 1988). See alsoYerrick v. State, 979 So.2d 1228 (Fla. 4th DCA 2008) Warren v.State, 924 So.2d 979 (Fla. 2d DCA 2006)(probation recordsprepared by the probation department may be admitted asbusiness records, but in this case the probation officer testified as towhat was in the records, but they were not introduced; therefore, thishearsay, was insufficient to establish a violation.).

b. In a violation of community control case the Court held on appeal thata telephone log from the community control officer was hearsay andit was inadmissible in the absence of the predicate required by§90.803(6). Community control cannot be revoked based solely onhearsay. Dietz v. State, 534 So.2d 808 (Fla. 2d DCA 1988).

c. A laboratory report showing that a urine sample from the defendantproved positive for cocaine was properly admitted into evidence in aviolation hearing as a business record pursuant to §90.803(6) wherea laboratory supervisor testified, as custodian of the records, to thestatutory criteria and no lack of trustworthiness was demonstrated. Itcould be the sole basis for revocation. Davis v. State, 562 So.2d431 (Fla. 1st DCA 1990). See also Russell v. State, 801 So.2d 999(Fla. 4th DCA 2001); Williams v. State, 553 So.2d 365 (Fla. 5thDCA 1989).

d. The sole evidence of violation was an urinalysis report. Thedefendant’s probation officer testified that a representative of the labpicked up the specimens, analyzed them and returned the reports tothe office. She was unfamiliar with the testing procedures and theprobation office did not maintain such records in the regularcourse of business. It was not admissible under the businessrecords exception. It was error to revoke the defendant's probationbased solely on this evidence. Chavous v. State, 597 So.2d 943 (Fla.2d DCA 1992).

e. The defendant was accused of violation of community control byusing cocaine. The probation officer sent a urine sample to a lab. Thelab sent a report back showing use of cocaine. The lab report wasallowed into evidence based on the testimony of the probation officerthat her office kept such reports in the normal course of business,but not that they made the reports. On appeal, the court held thatit was error to violate the defendant based on such evidence. The labreports were not admissible as business records pursuant to

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§90.803(6) because such records must be kept and made in thenormal course of business. Hogan v. State, 583 So.2d 426 (Fla. 1stDCA 1991).

f. In a violation of probation hearing a lab report is admissible withoutthe testimony of the chemist who prepared the report. Young v.State, 519 So.2d 719 (Fla. 5th DCA 1988), quashed on othergrounds, Lambert v. State, 545 So.2d 838 (Fla. 1989).

g. The trial court ruled that the defendant violated his probation by usingdrugs based solely on a lab report of a urine test that was positivefor cocaine. The defendant made no objection in the trial court, butargued on appeal that the conviction could not stand because it wasbased solely on uncorroborated hearsay. On appeal, the court heldthat the matter was not preserved for appeal; therefore, theconviction would stand. Lowe v. State, 901 So.2d 422 (Fla. 5thDCA 2005).

h. The defendant was found guilty of battery and, as part of the sentence,was ordered to pay restitution for medical expenses paid by the Officeof the Attorney General, Division of Victim Services and CriminalJustice Programs. “The only evidence produced by the State at therestitution hearing consisted of two affidavits that were presentedas self-authenticating public records setting forth the amount ofmoney paid by the Division on behalf of the victim. Attached to theaffidavits were true copies of payment information produced by theVictim Assistance Net, an organization operated by the Division. Thevouchers attached included the claim number, victim’s name, nameof the payee, service dates, the amount paid and the reason paid.” Thedefendant objected to the court’s reliance on this affidavit. “In orderto prove the amount of restitution owed to the Division, we havepreviously held that the State may introduce into evidence, basedon the public records exception to the hearsay rule, a sworn andnotarized affidavit of the almost identical type, and containingthe same information that was used here. Kirk v. State, 869 So.2d670 (Fla. 5th DCA 2004). We held in Kirk that those records alonewere sufficient to support the amount of the award.” Box v. State,993 So.2d 135 (Fla. 5th DCA 2008).

i. Defendant’s probation was revoked ... for failing to complete requiredcommunity service hours.... We ... reverse the trial court’s finding ofa violation of probation based on appellant’s failure to complete therequired community service hours. Appellant’s probation officer

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began supervising appellant in February 2010. The officer testifiedthat, prior to February 2010, appellant had not completed the requiredminimum of ten hours per month. Since the officer did notsupervise appellant during the period of the alleged violation, histestimony was based only on his review of appellant’s file. Thestate was required to move these records into evidence under thebusiness records exception to the hearsay rule to substantiate thealleged violations.” J.B. v. State, 84 So.3d 401 (Fla. 4th DCA2012).

j. See cases above on hearsay.

4. Absence of records.

a. The failure to report can be proven by the absence of defendant’smonthly reports because such evidence is covered by the exceptionset forth in §90.803(7). Garcia v. State, 564 So.2d 124 (Fla. 1990).

5. Judicial notice.

a. The court may take judicial notice of the defendant’s probationarystatus pursuant to §90.202. Young v. State, 519 So.2d 719 (Fla. 5thDCA 1988), quashed on other grounds, Lambert v. State, 545 So.2d838 (Fla. 1989).

b. The court may take judicial notice of the plea to the offense whichforms the basis for the violation. Gilmore v. State, 523 So.2d 1244(Fla. 2d DCA 1988).

6. Defendant’s silence, admissions and testimony.

a. The trial court may consider the fact that the defendant refuses todiscuss his compliance or noncompliance with the terms ofprobation, and his silence can serve as confirmation of theviolation. Manigault v. State, 534 So.2d 856 (Fla. 1st DCA 1988).See also State v. Mangam, 343 So.2d 599 (Fla. 1977).

b. The defendant’s admission that he had failed to submit monthlyreports and to keep his probation officer advised of his whereaboutswas sufficient to revoke probation. Jackson v. State, 546 So.2d 745(Fla. 2d DCA 1989).

c. Where the defendant is the only witness, his testimony cannot be

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disregarded where there is nothing in the record to support theconclusion that he ought not be believed. Costello v. State, 567So.2d 1032 (Fla. 4th DCA 1990).

7. Circumstantial evidence rule.

a. There is some indication that the circumstantial evidence ruleapplies. Smith v. State, 502 So.2d 77 (Fla. 3d DCA 1987).

b. The defendant was accused of violating probation by committing thenew crime of providing false information in an attempt to obtain acommercial driver’s license. The trial judge found him guilty of theviolation, but on appeal the court reversed. The court found that theevidence was consistent with the reasonable hypothesis ofinnocense that the examiner mistakenly recorded the defendant’sanswer or that he did not understand the question because oflanguage problems. The court cited State v. Law. The courtrecognized that evidence to support a criminal conviction is notnecessary to prove a vop. However, mere suspicion of a crime isinsufficient for revocation of probation. Pupo-Diaz v. State, 966So.2d 1010 (Fla. 2d DCA 2007)..

8. Affidavits and other documents.

a. “At a probation revocation hearing, the trial judge is not required tofollow the strict rules of evidence and can consider affidavits andother documents which are relevant, even though such may not beadmissible in a criminal trial.” McCarrick v. State, 553 So.2d 1373(Fla. 2d DCA 1989).

G. Matters not alleged in affidavit.

1. See cases above under the section on affidavits.

2. There can be no violation for conduct not alleged in the affidavit. Moserv. State, 523 So.2d 783 (Fla. 5th DCA 1988). See also Gaines v. State, 800So.2d 732 (Fla. 5th DCA 2001)(no error where the defendant was chargedwith a violation because of an aggravated battery, but the evidence showeda felony battery)

3. Where the defendant was accused of violating her probation by using cocaine,it was improper for the court to revoke probation for possession of marijuana.The state cannot meet its burden by proving a violation that is not

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alleged. Harrington v. State, 570 So.2d 1141 (Fla. 4th DCA 1990). See alsoCherington v. State, 24 So.3d 658 (Fla. 2d DCA 2009).

4. Where the defendant was charged by affidavit with violating his probation byfailing to report to his probation officer and there was no evidence of suchviolation, the trial judge could not revoke his probation based on evidencethat the defendant committed other crimes while on probation. “A person’sprobation cannot be revoked for conduct not charged by affidavit andwarrant.” Pimentel v. State, 560 So.2d 1387 (Fla. 2d DCA 1990), quashedon other grounds, 594 So.2d 402 (Fla 1992).

5. Probation cannot be revoked based on the fact that the evidence proves aviolation that is not alleged in the affidavit. Morse v. State, 604 So.2d 496(Fla. 1st DCA 1992).

6. The defendant can only be violated for conduct alleged in the affidavit.Andrews v. State, 693 So.2d 1138 (Fla. 1st DCA 1997). See also Odom v.State, 15 So.3d 672 (Fla. 1st DCA 2009)(court committed fundamental errorin finding the defendant guilty of violating the charged condition based solelyon evidence of violating a different condition); N.L. v. State, 825 So.2d 509(Fla. 1st DCA 2002).

7. The court cannot revoke probation for the commission of a crime notalleged in the affidavit. Martin v. State, 691 So.2d 1204 (Fla. 4th DCA1997).

8. The affidavit alleged the defendant violated his probation by committing anaggravated battery and armed robbery. The trial judge found that thedefendant committed a robbery by sudden snatch. This violated due process,but because the record indicated that there might be an amendedaffidavit the court remanded the cause to determine whether there wasan amended affidavit alleging the robbery by sudden snatch and awarrant issued before the expiration of the warrant. Howard v. State,883 So.2d 879 (Fla. 4th DCA 2004).

9. Another case holds that it was improper for the court to find theprobationer guilty of being an accessory after the fact because that wasnot the charge alleged in the affidavit nor was it a lesser included offense.Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997). See alsoBourne v. State, 869 So.2d 606 (Fla. 1st DCA 2004).

10. “Following appellant’s testimony, the trial court stated, ‘The Court is findingthat the defendant has, in fact, violated his probation by absconding for the

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months of May through November. He’ll be adjudicated guilty of theviolation of probation....’ Appellant argues that the trial court committedreversible error in finding a violation of probation for an allegation that wasnot contained in the violation of probation affidavit. The revocation of adefendant’s probation based upon a violation not alleged in the chargingdocument is a deprivation of the right to due process of law. Richardsonv. State, 694 So.2d 147, 147 (Fla. 1st DCA 1997) (citations omitted). Whilethe State contends that appellant did not preserve this issue for appellatereview, a contemporaneous objection was not required as a deprivation ofthe right to due process of law constitutes fundamental error. See id.(citations omitted). A trial court is not permitted to revoke probation onconduct not charged in the affidavit.... ‘An affidavit upon which apermanent revocation of probation is to be based must allege the basicfacts concerning the alleged violation, such as its nature, time, and placeof occurrence.’ Hines v. State, 358 So.2d 183, 185 (Fla.1978). Here,appellant’s probation officer alleged in his April 18, 2001, affidavit thatappellant violated condition three of his probation for ‘[f]ailure to notifyofficer of change of address his current whereabouts are currentlyunknown.’ In other words, as of the middle of April, appellant’swhereabouts were unknown. However, the trial court found thatappellant violated his probation for absconding during the months ofMay through November. While appellant’s probation officer testified atthe hearing that appellant had not reported during the months of Maythrough November, he did not file an amended affidavit alleging such aviolation. Nor did the State move to orally amend the affidavit duringthe revocation hearing.... Here, like Johnson, the trial court’s revocationof appellant’s probation was based upon conduct not charged in theofficer’s affidavit. The affidavit did not allege that appellant violated hisprobation by absconding during the months of May through November.Therefore, the trial court could not revoke appellant’s probation on thisbasis.” Perkins v. State, 842 So.2d 275 (Fla. 1st DCA 2003). See also Davisv. State, 891 So.2d 1186 (Fla. 4th DCA 2005); Bourne v. State, 869 So.2d606 (Fla. 1st DCA 2004).

11. The court relies on Perkins v. State, 842 So.2d 275 (Fla. 1st DCA 2003),which is in the outline. Here, the court reversed revocation on the groundsthat defendant had skipped school or was tardy, but there was no evidencethat the defendant did that on the date alleged in the complaint. T.T. v. State,82 So.3d 1019 (Fla. 4th DCA 2011). See also Wells v. State, 60 So.3d 551(Fla. 1st DCA 2011)(court reversed because the affidavit alleged only that thedefendant was seen holding a baby and not that it was unsupervised, but thecourt found that the defendant had unsupervised contact with a child).

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12. The defendant was convicted of violating his probation, but no affidavit wasin the record. On appeal, the court reversed “‘Revocation of probation ongrounds never alleged in writing violates due process and is fundamentalerror.’ Smith v. State, 738 So.2d 433, 435 (Fla. 1st DCA 1999).” DeJesusv. State, 848 So.2d 1276 (Fla. 2d DCA 2003).

13. Counsel was ineffective when counsel allowed the defendant to admit anuncharged violation resulting in revocation. The court also concluded thateven if the violation had been charged, it would have been insufficient forrevocation. Jackson v. State, 970 So.2d 246 (Fla. 2d DCA 2007).

14. The defendant was accused of violating probation by committing the newcrime of possession of drugs with intent to sell, but the evidence wasinsufficient. The “State’s alternative argument [was] that the evidencenonetheless sufficiently established appellant violated condition (5) of hisprobation by associating with a person engaged in criminal activity.” Thecourt rejected this theory because “the affidavit charged appellant withviolating condition (5) by “‘failing to live and remain at liberty withoutviolating any law.’.... ‘As a fundamental principle of due process, arevocation may be based only on a violation alleged and presented.’Davis v. State, 891 So.2d 1186, 1187 (Fla. 4th DCA 2005). Accordingly, wereverse the judgment on appeal and remand with directions that appellant’sprobation be reinstated.” Ratliff v. State, 970 So.2d 939 (Fla. 4th DCA2008).

15. “Joslin’s ... claims that the court found a violation of condition ten based onconduct not alleged in the affidavit of violation of probation. The court foundthat Joslin violated condition ten of his probation by informing his probationofficer that he had permission to reside with a minor but failing to inform theofficer that the contact was required to be supervised. While it may be truethat Joslin did not inform his probation officer about this limitation on hiscontact with Zack, this omission was not alleged in the affidavit of violationof probation. The affidavit alleged that Joslin violated condition ten of hisprobation by erroneously informing his probation officer that he went to courtand got permission to reside with a child under eighteen. It is not proper fora court to find a violation based on conduct not alleged in the affidavitof violation of probation. Grimsley v. State, 830 So.2d 118, 120 (Fla. 2dDCA 2002); Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000).Thus, the court erred in finding a violation on this basis.” Joslin v. State, 984So.2d 1269 (Fla. 2d DCA 2008).

16. The court relied on the decision in Parminter, in support of reversal ofrevocation for new offense of resisting an officer with violence because the

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offense was not charged in the affidavit. Lee v. State, 67 So.3d 1199 (Fla. 2dDCA 2011).

V. Sufficiency of evidence to justify revocation.

A. Validity of condition/waiver.

1. Where a juvenile failed to take a direct appeal on the issue of whether adultsanctions were appropriate, that offender waived the point and could not raiseit subsequently on an appeal from a violation of community control. “<[O]newho takes advantage of an invalid sentence until he violates communitycontrol is estopped to assert the invalidity of his original sentence.’”Tisdol v. State, 794 So.2d 576 (Fla. 2001).

2. Failure to object to a condition of probation at the time of sentencingwaives the right to object and the condition is valid. Cline v. State, 855So.2d 657 (Fla. 1st DCA 2003); Rowland v. State, 548 So.2d 812 (Fla. 1stDCA 1989); Sumter v. State, 570 So.2d 1039 (Fla. 1st DCA 1990); Burnsv. State, 513 So.2d 165 (Fla. 2d DCA 1987); Eloshway v. State, 553 So.2d1258 (Fla. 4th DCA 1989), rev. denied; 564 So.2d 486 (Fla. 1990); Posey v.State, 501 So.2d 192 (Fla. 5th DCA 1987).

3. The defendant in the Jones case failed to preserve the error. “[A] revocationof probation proceeding is merely an extension of the sentencing processand is therefore subject to its preservation requirements. Sentencingerrors are not reviewable on direct appeal unless they are preserved inthe trial court, either by timely objection at sentencing or by a timelymotion pursuant to Florida Rule of Criminal Procedure 3.800(b).” In thiscase, the defendant did neither. Jones v. State, 876 So.2d 642 (Fla. 1st DCA2004).

4. When a defendant fails to object to a condition at the time of sentencing, hedoes not accept the condition and waive his right to attack the condition if itis an illegal condition. If it is not an illegal condition failure to objectconstitutes an absolute bar to attacking the condition. “In the absence of anobjection, we believe that a defendant may appeal a condition ofprobation only if it is so egregious as to be the equivalent of fundamentalerror. The mere fact that a certain probationary condition is subject toreversal on appeal once a proper objection is raised does not necessarilymean it is illegal for the purposes at hand." Larson v. State, 572 So.2d1368 (Fla. 1991). See also Devine v. State, 636 So.2d 179 (Fla. 5th DCA1994); Watson v. State, 641 So.2d 432 (Fla. 5th DCA 1994); Sweet v. State,644 So.2d 176 (Fla. 5th DCA 1994).

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5. Even though a condition is improper it is still enforceable if the defendantfails to raise a contemporaneous objection to the condition at the sentencinghearing. Jacobsen v. State, 536 So.2d 373 (Fla. 2d DCA 1988); Sumter v.State, 570 So.2d 1039 (Fla. 1st DCA 1990). The contemporaneousobjection rule does not apply to illegal conditions of probation.Cassamassima v. State, 657 So.2d 906 (Fla. 5th DCA 1995).

6. Once a defendant has accepted the benefit of probation without raising thelegality of the sentence, he or she is precluded from subsequentlycomplaining about the illegality of the sentence in an appeal from anorder revoking probation. Gaskins v. State, 607 So.2d 475 (Fla. 1st DCA1992), overruled on other grounds, State v. Powell, 703 So.2d 444 (Fla.1997).

7. “Where a defendant has taken advantage of an illegal sentence to obtainan immediate release from incarceration, such as through placement onprobation, conditional release, or a suspended sentence, that defendantwill be estopped from challenging his sentence when such release isrevoked. See Dupree v. State, 708 So.2d 968, 968 (Fla. 1st DCA 1998); Huffv. State, 672 So.2d 634, 635 (Fla. 1st DCA 1996); Gaskins v. State, 607So.2d 475, 476 (Fla. 1st DCA 1992) disapproved on other grounds by Statev. Powell 703 So.2d 444, 446 n. 3 (Fla.1997); Bashlor v. State, 586 So.2d488, 489 (Fla. 1st DCA 1991). However, when a defendant has alreadyserved an incarcerative or probationary term in excess of the statutorymaximum, he has reaped no benefit from the illegal sentence and will notbe estopped from challenging such sentence. See Gonzales v. State, 816So.2d 720, 722 (Fla. 5th DCA 2002); Rucker v. State, 626 So.2d 276, 278(Fla. 2d DCA 1993). Thus, the present appellant’s situation is distinguishablefrom those in Dupree, Huff, Gaskins, and Bashlor, because the appellants inthose cases were placed on immediate, albeit illegal, supervision, and enjoyedthe benefit of being free from incarceration. In contrast, the present appellant,like the appellants in Gonzales and Rucker, reaped no benefit from hisoriginal illegal sentence because he served an incarcerative term inexcess of the statutory maximum before being placed on a term ofprobation that further exceeded the statutory maximum. For this reason,estoppel does not bar the appellant’s challenge. We therefore reverse theorder summarily denying the appellant’s motion to correct illegalsentence and remand for further proceedings.” White v. State, 828 So.2d491 (Fla. 1st DCA 2002).

8. Where the defendant accepted the benefits of community control, he wasprecluded from challenging the sentence upon revocation on the grounds

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that it was beyond the guidelines. Donald v. State, 611 So.2d 1322 (Fla.1st DCA 1993).

9. The defendant did not challenge the trial court’s improper reimposition oftwo years' community control until after he violated the terms of communitycontrol and the trial court sentenced him to a term of imprisonment. “‘[O]newho takes advantage of an invalid sentence until he violates communitycontrol is estopped to assert the invalidity of his original sentence.’” This istrue because the defendant has already received the benefit of the sentence.“‘Usually a defendant cannot agree to an illegal sentence, but when theillegal alternative and conditional defects which benefitted the defendantare no longer in effect, the terms of incarceration that were agreed uponare valid so long as they are not beyond the statutory maximum for theoffenses for which the defendant was convicted.’” “‘Existing case lawrecognizes that once a defendant has enjoyed the benefits of probationwithout challenging the illegality of sentence, the defendant is thereafterprecluded from complaining that the sentence is illegal in an appeal froman order revoking probation.’” Dupree v. State, 708 So.2d 968 (Fla. 1stDCA 1998).

10. Probation cannot be revoked or its terms modified for violating an invalid

condition. White v. State, 619 So.2d 429 (Fla. 1st DCA 1993). See alsoReed v. State, 865 So.2d 644 (Fla. 2d DCA 2004).

11. “[A]cceptance of probation constituted a waiver of the right to attackthat probation at revocation.” LaCourse v. State, 593 So.2d 619 (Fla. 2dDCA 1992).

12. The trial judge imposed a new term of probation with three conditions. Twoof them had been conditions of the original term of probation. The third hadnot. The defendant challenged all three terms. On appeal, the court held thatby accepting the benefits of probation and not attacking the terms whenthey were originally imposed he waived the right to attack thatprobation even on grounds of illegality. Baxter v. State, 596 So.2d 460(Fla. 2d DCA 1991), rev. denied, 599 So.2d 654 (Fla. 1992). See alsoBuckins v. State, 789 So.2d 1184 (Fla. 4th DCA 2001).

13. Written special conditions which were not announced at the time ofsentencing are unenforceable. Zachary v. State, 559 So.2d 105 (Fla. 2d DCA1990); Smith v. State, 558 So.2d 534 (Fla. 1st DCA 1990); Williams v.State, 542 So.2d 479 (Fla. 2d DCA 1989). This principle, however, has beenrevised by Maddox v. State, 760 So.2d 89 (Fla. 2000). In that case, the Courtconsidered a variety of sentencing errors and the appropriate method for

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review. The Court said: “Because we allowed courts to impose generalconditions of probation that have not been orally pronounced, it is clearthat our primary concern in correcting unannounced special conditionsof probation is the due process violation occurring when a person doesnot have notice and an opportunity to object to the condition ofprobation. However, following our promulgation of rule 3.800(b),defendants have been given a procedural mechanism to object to theimposition of special conditions of probation that have not been orallypronounced. This procedural mechanism satisfies due process concernsbecause the defendant has an opportunity to object following theimposition of the special condition of probation....Further, we do not findthat the deviation from the oral pronouncement of the conditions of probationimposed in Hyden is an error, let alone fundamental error. See Brock, 688So.2d at 910-12. In Hyden, the defendant alleges that the trial court deviatedfrom the oral pronouncement of the condition of probation that required thedefendant to submit to ‘random urinalysis, breath and blood testing.’ Hyden,715 So.2d at 961. We addressed the same condition of probation in Brock andfound that because the condition is statutorily authorized, it does not have tobe orally announced at the sentencing hearing. Brock, 688 So.2d at 910-12 &n. 1; see § 948.03(1)(k)1., Florida Statutes (Supp.1996); Torres v. State, 712So.2d 1169, 1170 (Fla. 2d DCA 1998).We thus find that considering thenature of the claimed error, the absence of any qualitative effect on thesentencing process, and the absence of any quantitative effect on thesentence, the imposition of the condition of probation that was not orallyannounced in Hyden does not constitute a fundamental sentencing error thatshould be considered on direct appeal. We also note that in none of ourpending cases has the appellant made a claim that he or she did not havenotice of the deviation from oral pronouncement of the conditions ofprobation in time to file a rule 3.800(b) motion.” Maddox v. State, 760So.2d 89 (Fla. 2000).

14. Historically, the trial court was required to announce special conditions ofprobation. Maddox v. State, changed that requirement. That decisionrecognizes that prior to Rule 3.800(b), if the condition was not announced atthe time of sentencing, the defendant had no opportunity to object. That rule,however, provides the defendant the opportunity to object to conditionscontained in the written order that were not announced at the sentencing. Sothe need to require announcement at the time of sentencing no longer exists.“However, when a defendant establishes that he did not have notice ofthe condition in time to file a rule 3.800(b) motion, the historic ruleapparently still applies.” State v. Joly, 885 So.2d 921 (Fla. 5th DCA 2004).

15. A statutorily authorized or mandated condition is a standard condition

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of probation. It does not have to be announced at the sentencing, butmust be included in the written sentencing order if not announced.Kiriazes v. State, 798 So.2d 789 (Fla. 5th DCA 2001).

16. “The Florida Supreme Court has recognized a ‘distinction between specialconditions of probation that must be orally pronounced at sentencing andthose general conditions for which oral pronouncement is unnecessary.’ Statev. Hart, 668 So.2d 589, 592 (Fla.1996). The rationale for this distinction isas follows: ‘It has been held that the usual ‘general conditions’ ofprobation are those contained within the statutes. Hart, 651 So.2d [112]at 113 [ (Fla. 2d DCA 1995) ]. In other words, a condition of probationwhich is statutorily authorized or mandated, see, e.g., sections948.03-.034, Florida Statutes (1993), may be imposed and included in awritten order of probation even if not orally pronounced at sentencing.Nank v. State, 646 So.2d 762, 763 (Fla. 2d DCA 1994). ‘The legalunderpinning of this rationale is that the statute provides ‘constructivenotice of the condition which together with the opportunity to be heardand raise any objections at a sentencing hearing satisfies therequirements of procedural due process.’ ’ Id. (quoting Tillman v. State,592 So.2d 767, 768 (Fla. 2d DCA 1992)). ‘With regard to a specialcondition not statutorily authorized, however, the law requires that it bepronounced orally at sentencing before it can be included in the writtenprobation order.’ Id. Consequently, when a trial court sufficientlyapprises the defendant of the ‘substance of each special condition’ sothat the defendant has the opportunity to object ‘to any condition whichthe defendant believes is inappropriate’ the minimum requirements ofdue process are satisfied. Olvey, 609 So.2d [640] at 643 [ (Fla. 2d DCA1992) ]. Id.” Cole v. State, 932 So.2d 1123 (Fla. 4th DCA 2006).

17. “Traditionally, whether a probation condition is a general condition or aspecial condition is determined by reference to Florida Statutes section948.803 and Florida Rule of Criminal Procedure 3.986(e); conditionswhich appear in neither the statute nor the rule are considered specialand must be orally pronounced. See Welborn v. State, 687 So.2d 35, 36(Fla. 4th DCA 1997); Tory v. State, 686 So.2d 689, 692 (Fla. 4th DCA1996).” Cole v. State, 932 So.2d 1123 (Fla. 4th DCA 2006).

18. “The trial court orally imposed drug offender probation but did notstate any conditions of that probation on the record.... On appeal, Colecontends that the trial court’s oral pronouncement of drug offender probationwas insufficient to impose the unannounced Drug Offender ProbationStandard Conditions requiring financial responsibility for drug testing, drugtreatment, and curfew compliance, because those conditions were special in

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nature despite being called Drug Offender Probation Standard Conditions.The State responds that the challenged conditions were not special conditionsand were standard conditions under Florida Statutes sections 948.03 and948.20, and consequently did not require oral pronouncement prior to beingreduced to a written order.... This Court has determined that conditions whichmust be orally pronounced include curfew and substance abuse treatmentrequirements in drug offender probation cases. See Tory, 686 So.2d at 692.The general conditions enumerated in section 948.03 do not include thefinancial responsibility for drug testing, drug treatment, and curfewconditions set forth in the Drug Offender Probation Standard Conditions.These challenged conditions are also not found in Rule 3.986(e).Additionally, Florida Statutes section 948.20, formerly Florida Statutessection 948.01(13), addressing drug offender probation, does not statutorilymandate these conditions. Section 948.20(1) provides only that: ‘Drugoffender probation status shall include surveillance and random drug testing,and may include those measures normally associated with communitycontrol, except that specific treatment conditions and other treatmentapproaches necessary to monitor the population may be ordered.’ Based onthe absence of similar drug offender probation conditions from any statute orrule, this Court concluded in Dean v. State, 669 So.2d 1140 (Fla. 4th DCA1996), that an oral pronouncement of ‘two years probation, drug offender’was insufficient to impose conditions such as rehabilitation and drugevaluation and treatment, which were deemed special conditions. Id. at1141-1142.... We conclude that the Drug Offender Probation StandardConditions imposed in the Orders of Supervision for Drug OffenderProbation were special conditions, because they were not provided forby statute or rule, despite their titling as Drug Offender ProbationStandard Conditions.... Therefore, the successor trial court erred byimposing these unannounced special conditions in the Orders ofSupervision.” Cole v. State, 932 So.2d 1123 (Fla. 4th DCA 2006).

19. Where the defendant was sentenced to probation for a DUI, the trial judgewas required to verbally announce the condition that he complete asubstance abuse treatment program at his own expense. Benner v. State,974 So.2d 578 (Fla. 1st DCA 2008).

20. “Special conditions of probation that are not announced orally during asentence hearing must be stricken and may not be reimposed at resentencingunless statutory exceptions exist. (Citations omitted) In certain instances acondition of probation which is statutorily authorized or mandated may beimposed and included in a written order of probation although omitted fromoral pronouncements at sentencing. (Citation omitted). Condition 9 ofJackson’s written probation order requires him to submit to, and pay for

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drug testing and treatment. Submission to random drug testing andtreatment is a general condition of probation that does not require oralpronouncement at the sentencing hearing. But, the requirement thatJackson pay for the testing and treatment is a special condition that mustbe orally pronounced at sentencing.” The condition of payment may not bereimposed. Jackson v. State, 902 So.2d 193 (Fla. 5th DCA 2005).

21. The defendant objected to special conditions not announced on the record.“We consider this matter en banc to recede from a long-standing bodyof case law, most recently enunciated in Jackson v. State, 902 So.2d 193(Fla. 5th DCA 2005), holding that special conditions of probation, notorally pronounced during sentencing, must be stricken and may not bereimposed.... State v. Joly, 885 So.2d 921, 922-23 (Fla. 5th DCA 2004) ...recognized a change to the rule in light of Maddox v. State, 760 So.2d 89(Fla.2000), and the subsequent revision to Florida Rule of CriminalProcedure 3.800(b). ‘[U]nder [the revised] rule 3.800(b), a defendant has theopportunity to interpose a substantive objection to probation conditionscontained in the written order even if no contemporaneous objection is madeat the sentencing proceedings. Therefore, procedural due process issatisfied without the need to orally pronounce otherwise proper specialprobation conditions. However, when a defendant establishes that he didnot have notice of the condition in time to file a rule 3.800(b) motion, thehistoric rule still applies.’ Joly, 885 So.2d at 923 (internal citationsomitted). .... [F]ollowing our promulgation of rule 3.800(b) [in Maddox],defendants have been given a procedural mechanism to object to theimposition of special conditions of probation that have not been orallypronounced. This procedural mechanism satisfies due process concernsbecause the defendant has an opportunity to object following theimposition of the special condition of probation. 760 So.2d at 105(emphasis added).... In the instant case, Grubb’s counsel filed a timely rule3.800(b) motion seeking to strike the unpronounced, but otherwise proper,conditions of probation contained in Grubb’s probation order. When the trialcourt failed to rule on the motion within the requisite sixty days, the motionwas deemed denied. Grubb asserts no substantive objections to theunpronounced probation conditions. Grubb’s only objection to theconditions of probation was the purported violation of procedural dueprocess resulting from the failure to pronounce them at sentencing.Because we find Grubb’s procedural due process rights were adequatelyprotected when she raised her concerns in her timely 3.800(b) motion, weaffirm. In doing so, we recede from Jackson, Russman and our othercases holding that unpronounced, but otherwise unobjectionable,conditions of probation contained in probation orders must be strickenand cannot be reimposed.” Grubb v. State, 922 So.2d 1002 (Fla. 5th DCA

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2006)(en banc). See also Ladson v. State, 955 So.2d 612 (Fla. 2d DCA), rev.denied, 968 So.2d 557 (Fla. 2d DCA 2007)(agreed with Grubb and ruled thatwhile the requirement to pay for random testing is a special condition and issupposed to be announced, the remedy provided by Rule 3.800 eliminates thedue process problem and the condition need not be stricken).

22. “Condition 10 of the written probation order requires Jackson to pay$1.00 to First Step, Inc., for each month of supervision, but the paymentrequirement was not orally pronounced at sentencing and it is notincluded in the list of general probation conditions for which nopronouncement is required. However, the fee is statutorily authorized. Wemust strike the requirement that Jackson pay the fee, but upon remand, it maybe reimposed after Jackson receives appropriate notice and an opportunity tobe heard.” Jackson v. State, 902 So.2d 193 (Fla. 5th DCA 2005).

23. “Condition 11 requires Jackson to submit to warrantless searches of hisperson, residence and property. This condition is statutorily authorizedand does not have to be orally pronounced at the sentencing hearing tobe validly imposed.” Jackson v. State, 902 So.2d 193 (Fla. 5th DCA 2005).

24. The trial judge did not announce at the time of sentencing that thedefendant was subject to any general conditions of probation nor was awritten order ever entered reciting such conditions. The defendant wassentenced to prison. Upon his release he was told in writing where and whento report to his probation officer. He failed to timely report and to contact hisprobation officer at all. The probation officer filed an affidavit of violationand subsequently filed an amended affidavit alleging commission of a newcrime. The successor trial judge realized that no written probation order hadever been entered and entered one nunc pro tunc. After a hearing the judgefound the defendant guilty of a violation based on his failure to contact theprobation officer and commission of a new crime. On appeal, the court foundthat this was error but it wasn’t preserve. “Except in cases involving certaincrimes other than the one here involved, a trial court has discretion todetermine which general conditions to include in a probation order....General conditions may be imposed either orally, or in writing, or both.General conditions of probation not orally pronounced at sentencingmay nevertheless be validly imposed by subsequent timely written orderof probation. (citations omitted) Revoking probation, however, forviolating conditions neither orally pronounced nor embodied in a writtenorder violates a defendant’s due process rights under the Florida and theUnited States Constitutions.... When Appellant in this case committedthe acts which allegedly constitute a violation of his probation, he hadnot been told either orally or in writing that such acts were prohibited

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and would result in a revocation of his probation. The trial courttherefore erred in revoking Appellant’s probation.” Jones v. State, 876So.2d 642 (Fla. 1st DCA 2004).

25. “The claimed violation by Person’s failure to attend a substance abuseevaluation cannot stand because there is no such standard condition ofprobation, and none was clearly enunciated during the oralpronouncement of additional ones. (Citations omitted). It was alleged thatPerson had violated condition L3 of the order of probation in that he failedto file job search logs. Because there was no orally pronounced or writtenorder which required the filing of such documents, he could not havebeen violated on this ground. (Citations omitted).” Pearson v. State, 83So.3d 940 (Fla. 3d DCA 2012).

26. “Section 948.01(4), Florida Statutes (2004) provides that the duration ofa community control sentence may not exceed two years. A court maynot evade the two-year limit by sentencing a defendant to a term ofprobation in excess of two years, with a special condition of house arrest.See Villabol v. State, 595 So.2d 1057, 1058 (Fla. 2d DCA 1992); Colemanv. State, 564 So.2d 1238 (Fla. 5th DCA 1990).” Bebout v. State, 904 So.2d613 (Fla. 4th DCA 2005).

27. The defendant’s probation was transferred to Colorado. His probation wasrevoked for violating a condition required by Colorado after sentencing. “Mr.Critelli first argues that while Colorado was entitled to place additionalconditions on him under the Interstate Compact, because those additionalconditions were not orally pronounced at sentencing and made a part ofhis Florida probation order, his violation of the Colorado conditions issimply a breach of contract with Colorado, not a violation of hisprobation.... Mr. Critelli asked to have his probation transferred toColorado. Colorado conditioned its acceptance on his agreement to theColorado conditions. We view this as a voluntary modification of hisprobation. Mr. Critelli signed an Interstate Compact application under whichhe agreed to abide by both Florida’s and Colorado’s conditions of probation.There can be no doubt that Mr. Critelli was fully aware of the conditionsof his probation added by Colorado and had the opportunity to objectto those conditions.... The Interstate Commission for Adult OffenderSupervision Rules state: ‘Failure of an offender to comply with specialconditions or additional requirements imposed by a receiving state shall formthe basis of punitive action in the sending state notwithstanding the absenceof such conditions or requirements in the original plan of supervision issuedby the sending state. For purposes of this rule, the original plan of supervisionshall include, but not be limited to, any court orders setting forth the terms

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and conditions of probation, any orders incorporating a plan of supervisionby reference, or any orders or directives of the paroling or probationauthority.’” This refutes defendant’s argument. Critelli v. State, 962 So.2d341 (Fla. 5th DCA), rev. denied, 973 So.2d 1120 (Fla. 2007).

28. Even if a condition is invalid, the defendant who takes advantage of thecondition may waive the objection. “Mr. Critelli should not be able toaccept the benefits of his transfer to Colorado, and then fail to carry outthe required conditions. See Bashlor v. State, 586 So.2d 488, 489 (Fla. 1stDCA 1991) (‘Absent some jurisdictional flaw, Florida courts have repeatedlyheld that sentences imposed in violation of statutory requirements, which areto the benefit of the defendant and to which he agreed, may not be challengedafter the defendant has accepted the benefits flowing from the plea, but hasfailed to carry out the conditions imposed on him.’).” Critelli v. State, 962So.2d 341 (Fla. 5th DCA), rev. denied, 973 So.2d 1120 (Fla. 2007).

29. Examples concerning waiver and invalid conditions.

a. A probationer cannot be ordered to maintain full-timeemployment. Such a requirement constitutes fundamental error.White v. State, 619 So.2d 429 (Fla. 1st DCA), rev. denied, 626 So.2d208 (Fla. 1993). See also Reed v. State, 865 So.2d 644 (Fla. 2d DCA2004).

b. The defendant argued for the first time on appeal that the trial judgerelied on the fact that the defendant tested positive for marijuanawhen there was no condition that he submit to such tests. Since thatissue was not raised in the trial court and was not fundamentalerror, the issue was not preserved. “The state charged appellantwith failing to follow the probation officer’s instructions not to usedrugs.” The conditions of probation specifically prohibited use ofcontrolled substance. The test plus his admission showed that he hadused marijuana. Lewis v. State, 874 So.2d 18 (Fla. 4th DCA 2004).

c. The defendant was ordered to maintain full-time employment for atleast thirty-five hours per week. The defendant did not object. Onappeal the Court held that the defendant could attack this conditionbecause it was “sufficiently egregious to be the equivalent offundamental error.” The court pointed out that there werecircumstances beyond the control of the defendant that would affectcompliance. A better condition would have been that the defendant“maintain or actively seek gainful employment.” Walls v. State, 596So.2d 811 (Fla. 4th DCA 1992). See also Reed v. State, 865 So.2d

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644 (Fla. 2d DCA 2004).

d. Even without an objection the defendant can later attack acondition which gives to the probation officer the sole authorityto revoke probation because that is illegal. Reasonable delegationsof incidental discretion are permissible if sufficiently restricted bythe court. For example, it is proper to delegate the authority to a pro-bation officer to supervise counseling required of the defendant aslong as the discretion is to be used solely for rehabilitative purposesand does not take on the character of an essentially judicial act.Larson v. State, 572 So.2d 1368 (Fla. 1991).

e. The defendant was violated for not following the instructions of hisprobation officer. “At the hearing, Bell's probation officer testifiedthat Bell had been unemployed for approximately seven months. Shestated that she told Bell to begin reporting on a daily basis to heroffice with his job search forms. Bell did not report to his probationofficer on June 4, 2008. ‘[A] probation officer may give a probationerroutine supervisory directions that are necessary to carry out theconditions imposed by the trial court.’ Miller v. State, 958 So.2d 981,984 (Fla. 2d DCA 2007). ‘However, an instruction that essentiallyimposes a new condition of probation is not a routine supervisorydirection and cannot support a finding that the probationer is inviolation.’ Id. at 984-85. We find that the probation officer’srequirement of daily reporting constituted a new condition ofprobation that had not been imposed by the trial court.” Thecourt reversed. Bell v. State, 24 So.3d 712 (Fla. 2d DCA 2009).

f. “[W]e agree with Mitchell that the trial court erred in failing to deleteSpecial Condition F of Mitchell’s probation, which delegated tothe probation officer the authority to order alcohol and drugtesting in order for the probation officer to determine whetherany substance abuse treatment was necessary.” Mitchell v. State,954 So.2d 1263 (Fla. 5th DCA 2007).

g. “The defendant appeals from his sentence claiming ... that specialprobationary condition (h) is invalid.... Special probationary condition(h) provides: ‘As directed by your Officer, you will enroll in,regularly attend, and successfully complete, such programs as arereasonably related to your past and future criminality, or therehabilitative purposes of probation; including but not limited toalcohol and drug treatment and counseling, mental healthcounseling, vocation and education courses, rehabilitation

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programs, evaluation and therapy.’ The defendant argues thatpermitting his probation officer to select the appropriate rehabilitativeprograms he should attend amounts to an improper delegation of thetrial court’s authority and that a similar condition was struck down bythis Court in Mitchell v. State, 954 So.2d 1263 (Fla. 5th DCA 2007).In Mitchell, this Court, without citation of authority, held that thetrial court erred in including a special condition of probation‘which delegated to the probation officer the authority to orderalcohol and drug testing in order for the probation officer todetermine whether any substance abuse treatment wasnecessary.’ In Larson v. State, 572 So.2d 1368, 1371 (Fla.1991), theFlorida Supreme Court explained that a trial court cannot delegate toa probation officer the sole authority to revoke a defendant’sprobation as that is a purely judicial function. The court continued:‘However, reasonable delegations of incidental discretion arepermissible if sufficiently circumscribed by the trial court. Thismay be true whether or not the defendant objects. For example,we believe this can include authority for a probation officer tosupervise the counseling required of some defendants so long asthis discretion is to be used only for rehabilitative purposes anddoes not take on the character of an essentially judicial act....’ Id.The court then upheld a condition of probation requiring thedefendant undergo psychological evaluation under the direction of hisprobation officer, explaining: ‘[T]he trial court did not violate the lawby delegating some limited discretion to a probation officer. It isentirely proper for a probation officer to supervise conditionsaimed at rehabilitation, including counseling.’ Id. at 1372. In Lawv. State, 705 So.2d 632, 634 (Fla. 5th DCA 1998), this Court, relyingon the standard set out in Larson, dismissed a challenge to aprobationary condition ‘requiring [the defendant] to complete a drugor alcohol rehabilitation program as recommended by [his] probation[officer].’ This Court rejected the claim that the condition vestedunbridled discretion in the probation officer.... The distinctionbetween a permissible and impermissible delegation of authoritylies with whether the probation officer is merely supervising aspecific, judicially-ordered condition of probation (permissible)or whether the probation officer has been delegated the authorityto impose what amounts to additional conditions of probation(impermissible). (Citation omitted) Thus, in the Law line of cases,it was permissible for the trial court to have ordered thedefendant to complete a drug or alcohol rehabilitation programas further recommended or directed by the probation officerwhile in Mitchell, it was improper for the court to delegate to the

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probation officer the authority to actually order alcohol and drugtesting in order for the probation officer to determine whethersubstance abuse treatment was necessary. (Citation omitted) In theinstant case, special condition (h) does not simply grant to theprobation officer authority to supervise or direct a specific conditionof probation ordered by the court. Rather, it allows the probationofficer to actually impose a wide variety of programs related torehabilitation, ‘programs including but not limited to alcohol anddrug treatment and counseling, mental health counseling, vocationand education courses, rehabilitation programs, evaluation andtherapy.’ This is far more than mere supervision or direction of ajudicially-imposed condition of probation. It is a broad, rather thancircumscribed delegation of judicial authority to the probationofficer to effectively impose conditions of probation and as suchis improper under the standard enunciated in Larson. However,rather than simply eliminating this salutary aspect of probation, weremand to the trial court for clarification of the probationarycondition, to judicially designate applicable rehabilitationprograms while authorizing the probation officer to thensupervise and effectuate the probationary condition.” Carter v.State, 975 So.2d 1199 (Fla. 5th DCA 2008).

h. The defendant was accused of violating probation by possessing aweapon, to wit: a buck hunting knife. The trial judge found that thedefendant had violated probation, despite the fact that the knife didnot meet the statutory definition of a weapon. The court found thatthe defendant violated probation because the probation officertold him the knife was a weapon and he should not carry it. Onappeal the court reversed. “A probation officer has no authority toimpose additional conditions of probation, even if the court hasordered the probationer to follow all instructions the officer may give.(Citation omitted) Here, the court-ordered probation conditionsdid not specifically prohibit Appellant from carrying a commonpocketknife, which is not ordinarily considered a weapon.Therefore, Appellant’s probation officer exceeded his authorityin exacting such a prohibition. Because Appellant was notcourt-ordered to refrain from carrying a common pocketknife,the trial court erred in finding him in violation of such acondition. See Narvaez v. State, 674 So.2d 868, 869 (Fla. 2d DCA1996).” Bishop v. State, 21 So.3d 830 (Fla. 1st DCA 2008).

i. The defendant was ordered by the court to “undergo a psychologicalevaluation and successfully complete any treatment program

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required.” In the fourth year of probation the therapist ordered thedefendant to undergo random drug testing. Those results werepositive for drugs. He was found guilty of violating his probation. Onappeal, the court reversed because the probation order did notorder such testing and his treatment for sex offenses did notlogically contemplate such tests. Santiago v. State, 722 So.2d 950(Fla. 4th DCA 1998).

j. The defendant’s probation could not be revoked for not payingaccording to a payment schedule, where the probation officer setthe schedule. McCoy v. State, 730 So.2d 803 (Fla. 2d DCA 1999).

k. Except for an illegal condition the defendant waives the right toappeal if he fails to object. The requirement that the defendantreceive substance abuse screening and counseling if deemednecessary by his probation officer is not illegal. Boudreaux v.State, 578 So.2d 457 (Fla. 1st DCA 1991).

l. Defendant was on probation for dealing in stolen property. Heviolated probation by driving under the influence of alcohol (DUI).The trial court revoked probation and imposed a new period ofprobation with special conditions requiring substance abusetreatment, abstinence from intoxicants, avoidance ofestablishments whose primary purpose is the sale or consumptionof intoxicants, and submission to random urinalysis. Thedefendant argued for the first time on appeal that these conditionswere invalid because they did not relate to the original offense. Onappeal, the court concluded that the issue had been waived becauseno objection had been made in the trial court and the conditions arenot “illegal or so egregious as to be the equivalent of fundamentalerror.” “Conditions limiting the consumption of alcohol orrequiring substance abuse screening are not the type ofconditions which may be appealed in the absence of acontemporaneous objection.” Devine v. State, 636 So.2d 179 (Fla.5th DCA 1994).

m. The defendant was convicted of a felony relating to the distributionof obscene material. The court made it a condition of probation thatthe defendant not use or possess alcohol. The court struck thecondition. “Trial courts have broad discretion to impose conditionsof probation, but special conditions must be reasonably related torehabilitation. See Stephens v. State, 659 So.2d 1303, 1304 (Fla. 1stDCA 1995). Biller v. State, 618 So.2d 734, (Fla.1993), held that a

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special probation condition ‘ ‘is invalid if it (1) has norelationship to the crime of which the offender was convicted, (2)relates to conduct which is not in itself criminal, and (3) requiresor forbids conduct which is not reasonably related to futurecriminality,’ ’ (quoting Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2dDCA 1979)). Id. at 734–35. All three Rodriguez factors must existfor an appellate court to strike a special probation condition asan abuse of discretion. Stephens, 659 So.2d at 1304. In Biller, thesupreme court struck a condition prohibiting the petitioner from usingor possessing alcohol while on probation for carrying a concealedfirearm and carrying a concealed weapon. 618 So.2d at 735. Thecourt reasoned there was no connection between alcohol use andthe petitioner’s crimes, alcohol use by adults is legal, and ‘therewas nothing in the record, such as information in a presentenceinvestigation report, which would suggest that Biller has apropensity towards alcohol or that his judgment becomesimpaired as a consequence of using it.’ Id. In the instant case, twoof the Rodriguez factors clearly are met: nothing in the recordconnects Appellant’s alcohol use to the crime he was convicted of,and it is legal for Appellant, who is an adult, to use alcohol. Butunlike Biller, the record here contains information indicatingAppellant's ‘propensity towards alcohol.’ Specifically, thepresentence investigation report (‘PSI’) reveals that in Arkansas in2005, Appellant was found guilty and convicted of DUI. He failed tocomplete court-ordered substance abuse treatment. The followingyear, Appellant was arrested in Pensacola for DUI, pled to thelesser-included offense of reckless driving, and was ordered to attendfirst offender DUI school and receive substance abuse treatment.Further, the report states that Appellant admitted having used alcohol‘to mask things that bothered him.’ Under the reasoning in Biller,the information in the PSI suffices to negate the third Rodriguezfactor. Therefore, the trial court did not abuse its discretion byprohibiting Appellant from consuming or possessing alcohol as aspecial condition of probation.” Austin v. State, 67 So.3d 403 (Fla.1st DCA 2011).

n. A special condition of probation is invalid if (1) it is unrelated tothe crime the defendant committed; (2) relates to conduct whichis itself not criminal; and (3) requires or forbids conduct whichis not reasonablely related to future criminal conduct. In this case,the defendant was convicted of practicing law after suspension andher probation was violated for having contact with her daughter. Therelationship with the daughter was not good. The court ruled that

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the condition was not valid under any of the three factors. Spanov. State, 60 So.3d 1108 (Fla. 4th DCA 2011).

o. Relying on Biller, the court upheld a condition that the defendantparticipate in sexual offender therapy where the defendant wasconvicted of a misdemeanor battery on his daughter whichinvolved a touching of her buttocks and breast. Villanueva v.State, 118 So.3d 999 (Fla. 3d DCA 2013).

p. The defendant had multiple prior revocations and argued that thecourt lacked jurisdiction to revoke community control because twoyears is the maximum period which may be imposed. On appeal, thecourt held that the trial judge had jurisdiction in each of the instancesof revocation because the term of community control had not expiredbefore the violation and the term was within the statutory maximumfor the offense. “Any objection regarding the question of whetherthe court erred in reimposing community control is not waived.[The defendant] having accepted the benefits of communitycontrol, is precluded from challenging that sentence uponrevocation.” Ulmer v. State, 619 So.2d 443 (Fla. 2d DCA 1993).

q. Where the defendant failed to make an objection when the conditionwas imposed or to make a motion to strike he waived his objectionthat a condition was too vague. Maxlow v. State, 636 So.2d 548 (Fla.2d DCA 1994).

r. His failure to object constituted a waiver because the requirementthat the defendant not use intoxicants to excess was not illegal norwas it “‘so egregious as to be the equivalent of fundamentalerror.’” Bledsoe v. State, 657 So.2d 1235, 1237 (Fla. 5th DCA1995).

s. On a violation of probation the defendant agreed to a sentence of fiveyears incarceration suspended on condition that he successfullycomplete two years of community control followed by three yearsprobation. The violation was the commission of a new crime. On thenew offense the defendant agreed to twelve years incarcerationsuspended on the condition that he successfully complete two yearsof community control followed by thirteen years probation. Thedefendant violated the terms of his community control and the periodsof incarceration were imposed. On appeal, the court held that thesentences were illegal because they were not authorized by Poore v.State, 531 So.2d 161 (Fla. 1988). The defendant did not complain

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about the illegality until after the community control was revoked.“‘[O]nce a defendant has enjoyed the benefits of probationwithout challenging the legality of the sentence, the defendant isthereafter precluded from complaining that the sentence is illegalin an appeal from an order revoking probation’.... Usually, adefendant cannot agree to an illegal sentence, but when the illegalalternative and conditional defects which benefit that defendantare no longer in effect, the terms of incarceration that wereagreed upon are valid so long as they are not beyond thestatutory maximums for the offense for which the defendant wasconvicted.” Warrington v. State, 660 So.2d 385 (Fla. 2d DCA1995). This case was overruled as to the portion holding that this wasan illegal split sentence. State v. Powell, 703 So.2d 444 (Fla. 1997).

t. The judge cannot impose an illegal sentence pursuant to a pleabargain. Thus, it was improper to impose a sentence includingprison and probation where the total time of restraint exceeded thestatutory maximum prison sentence. Arnett v. State, 598 So.2d 235(Fla. 1st DCA 1992). Danzy v. State, 603 So.2d 1320 (Fla. 1992).

u. The defendant negotiated a plea which included one year ofprobation on a second degree misdemeanor which was an illegalsentence. The defendant did not waive his right to contest thesentence. “A defendant cannot acquiesce in an illegal sentence, seeDavis v. State, 552 So.2d 338 (Fla. 4th DCA 1991), and can attackan illegal sentence at any time.” Purvis v. Lindsey, 587 So.2d 638(Fla. 4th DCA 1991). See also Sims v. State, 589 So.2d 970 (Fla. 1stDCA 1991).

v. The defendant was convicted of attempted criminal mischief. Thejury found the value of damage to the property to be between $200.00and $1000.00. He was ordered to pay restitution over $2000.00. Onappeal, the defendant argued that the restitution could not exceed$1000.00. The defendant did not object to the amount of restitutionon those grounds in the trial court. The court held that the argumentwas waived and it was not fundamental error. “[T]he testimony andevidence presented at trial provided a factual basis for theamount of restitution the court ordered. The amount was notegregious and was appropriate as a condition of probation.”Gliszczynski v. State, 654 So.2d 579 (Fla. 5th DCA 1995).

w. “The prosecution costs and public defender fees imposed asconditions of probation in this case are neither illegal nor so

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egregious as to amount to fundamental error.” Holmes v. State, 658So.2d 1185 (Fla. 4th DCA 1995).

x. The defendant argued that his community control was improperlyrevoked because his original sentence was illegal. It provided forincarceration, followed by community control, followed by probation,whereas the guidelines provided for incarceration or communitycontrol. The defendant never challenged the original sentence.“‘[S]entences imposed in violation of statutory requirements,which are to the benefit of the defendant and to which he agreed,may not be challenged after the defendant has accepted thebenefits flowing from the plea, but has failed to carry out theconditions imposed on him.’” A defendant could not complainabout the legality of probation after revocation of probation where hehad accepted the benefits of the probation. Brown v. State, 659 So.2d1260 (Fla. 4th DCA 1995).

y. The requirement that the defendant “not come within 250 miles ofthe victim” is so vague as to be subject to an unintentional violation.Such a condition is illegal and no contemporaneous objection isrequired pursuant to Larson. Hughes v. State, 667 So.2d 910 (Fla.4th DCA 1996).

z. The condition that the defendant was precluded from “associatingwith ‘persons who use illegal drugs’ was “unenforceable becauseit was too vague and capable of unintentional violation.” Wilsonv. State, 857 So.2d 223 (Fla. 2d DCA 2003).

aa. Where amount of restitution is legal, a dispute as to the amount doesnot involve fundamental error and there must be a contemporaneousobjection. Gliszczynski v. State, 654 So.2d 579 (Fla. 5th DCA1995).

bb. The condition that the defendant not use intoxicants to excess norvisit places where intoxicants, drugs or other dangeroussubstances are unlawfully sold, dispensed or used, was not illegal orso egregious as to constitute fundamental error. Bledsoe v. State, 657So.2d 1235 (Fla. 5th DCA 1995).

cc. The condition that the defendant work diligently at a lawfuloccupation and support any dependents to the best of his ability,as directed by the community control officer was not illegal or soegregious as to constitute fundamental error. Bledsoe v. State, 657

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So.2d 1235 (Fla. 5th DCA 1995).

dd. The defendant argued for the first time at his probation violationhearing that his sentence was invalid because the trial judge failed tomake the findings required by chapter 39. On appeal, the court heldthat this issue should have been raised at the sentencing and theprobation violation hearing was too late. “At the time of therevocation hearing, the questions before the court were whetherdefendant had violated his adult probation, whether probationshould be revoked, and if so, what sentence should be revoked.”McCloud v. State, 653 So.2d 453 (Fla. 3d DCA 1995).

ee. In this case, the defendant was ordered to “undergo a SubstanceAbuse Evaluation and complete any treatment/education programrecommended by the Evaluator at [her] own expense.” Several yearslater the probation officer filed an affidavit of violation alleging aviolation of this condition because she refused to get in-patientalcohol treatment as required by her probation officer. Three dayslater a hearing was held. The defendant appeared with counsel. Theprosecutor and the defense attorney announced an agreement in whichthe VOP was withdrawn, and she agreed to these three additionalterms: (1) the defendant would go into an alcohol detoxificationcenter and stay there until released by the program authorities; (2) thedefendant would follow any treatment recommended by the program;(3) the defendant would not consume any alcohol at any time. Thetrial judge approved the agreement. Later the defendant was chargedwith a violation of probation based on two of the new conditions. Shewas convicted. At the violation hearing she made no argumentconcerning the legality of the new conditions. On appeal, thedefendant argued that the violation was based on illegalconditions, because they were imposed as a result of an allegedearlier violation of a condition imposed by the probation officer.On appeal, the court agreed. “We have several times held thatprobation or community control may not be revoked for violation ofa condition or requirement imposed unilaterally by the probationofficer but not by the sentencing order.... [T]he record is clear that[the defendant] was ordered to complete any treatmentrecommended by her evaluator, but the alleged violation concernsher failure to get treatment ordered by her probation officer.Hence, we agree that the failure to get treatment charge does notstate a proper charge for violation of probation.” (emphasis by thecourt). The state argued that the failure to object waived this point.The court reasoned that this was like the failure to allege a charge

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and is not waived. Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA1996).

ff. Any sentence that violates the rules on credit is illegal and thecourt cannot hold the defendant to any agreement to such asentence. The defendant cannot acquiesce in an illegal sentence byentry of a plea. Wilson v. State, 698 So.2d 1380 (Fla. 4th DCA1997).

gg. Defendant was ordered by the court to go for evaluation andtreatment, which he completed in December of 1996. In March of1997 his probation officer told him to enter the same program again.The director of that program refused to admit him because he hadtwice been in the program. The probation officer filed a violation fornot complying with the probation officer's instructions. The trialjudge found the defendant guilty. On appeal the court reversed,saying: “‘It is firmly settled ... that a probationer may not beviolated for breach of a requirement imposed, as was this one, byhis probation officer, rather than by the court, which has the solelawful authority to do so.’” Talley v. State, 708 So.2d 333 (Fla. 4thDCA 1998).

hh. The defendant was violated for failing to follow his probationofficer’s instructions. The court reversed. The probation officer,Steere, had received a report that the defendant, Miller, had beenrepeatedly contacting a person. Steere called Miller and told himnot to contact the individual. But Steere received informationthat the defendant was still contacting the person. That was thebasis for a violation. On appeal, the court found that this wasessentially a new condition of probation. “There is no question thata probation officer may give a probationer routine supervisorydirections that are necessary to carry out the conditions imposed bythe trial court. Parissay v. State, 687 So.2d 30, 30 (Fla. 5th DCA1997). Thus, for example, a probation officer may require aprobationer to notify the probation officer when he loses his jobbecause this direction simply effectuates the conditions alreadyimposed by the court. Haynes v. State, 440 So.2d 661, 662 (Fla. 1stDCA 1983). However, an instruction that essentially imposes anew condition of probation is not a routine supervisory directionand cannot support a finding that the probationer is in violation.Id. For example, in Haynes, the probation officer’s instructionforbidding Haynes from going to his wife’s house was determined tobe a new condition of probation rather than an instruction necessary

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to carry out the conditions imposed by the court. Therefore, thecourt reversed the revocation of probation to the extent that it waspremised on that alleged violation.” Miller v. State, 958 So.2d 981(Fla. 2d DCA 2007). See also Williamson v. State, 43 So.3d 843(Fla. 1st DCA 2010). Ramirez v. State, 4 So.3d 752 (Fla. 2d DCA2009)(the probation officer’s instructions that the defendant reportwith his own interpreter was not a court-imposed condition).

ii. In 1991 the defendant was charged with aggravated assault and aviolation of probation based on that new crime. The trial judge foundthe defendant not guilty of the violation. The defendant asked to bereleased on his own recognizance pending resolution of theaggravated assault. The state had no objection, but they requested thatthe terms of his probation be changed to prohibit contact withminors. The defense counsel objected; however, he gave in when thetrial judge indicated that his request for release would be consideredat a future date. The court said, “‘So, it would be without objectionby your client to modify the probation to require that he have nocontact with minor children, that is anyone under the age ofeighteen, without the presence of another responsible adult.’”Thus, the court entered an order modifying his probation by addingthat condition. In 1996 the defendant's probation was revoked forviolating that new condition. His motion for postconviction releasewas denied. On appeal, the court reversed. The court found that thenew condition was an enhancement. “While it is true that thetrial court has the right to rescind or modify terms and conditionsof probation at any time pursuant to section 948.01(5), FloridaStatutes (1991), ‘[a]bsent proof of a violation, the court cannotchange an order of probation by enhancing the terms.’” The courtalso stated that probation is a sentence and double jeopardy barsenhancements or extensions of probation. Furthermore, “when anon-violating probationer agrees to the enhancement of the termsof probation, he is not estopped from, raising the double jeopardyinfringement.... The prohibition against double jeopardy ... hasnot been waived by the failure to raise this issue on appeal of theoriginal imposition of the condition or by failure to appeal thesubsequent revocation of probation.” The court ruled that the 1991modification was a nullity and the defendant’s probation could not beviolated in 1996 for a violation of that condition. Casterline v. State,703 So.2d 1071 (Fla. 2d DCA 1997).

jj. “While the imposition of special condition two was an illegalenhancement of the original conditions of probation and a violation

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of double jeopardy principles, we must determine whether Blair haswaived the double jeopardy issue. The question of a waiver isparticularly significant in light of the sequence of events in this case.After special condition two was added, Blair was charged with andpleaded guilty to a violation of probation. While special conditiontwo was not the basis of the charged violation, the plea in March1999 was given in exchange for an agreed continuation of probation.The trial judge noted that the State was seeking a prison term forBlair due to his violation of probation. Nevertheless, the trial judgecontinued Blair's probation and specified that Blair must complete thepreviously imposed conditions of probation. In State v. Johnson, 483So.2d 420, 421 (Fla.1986), the supreme court noted, ‘[T]here may belimited instances in which a defendant may be found to haveknowingly waived his double jeopardy rights.’ Where a guilty plea isbargained for, double jeopardy claims as to the conviction andsentence are waived. Novaton v. State, 634 So.2d 607, 609(Fla.1994); see also Melvin v. State, 645 So.2d 448, 449 (Fla.1994).Blair should have appealed the addition of special condition twowhen it was originally imposed in 1998. See Baxter v. State, 596So.2d 460 (Fla. 2d DCA 1991). He did not do so, and in March 1999,Blair accepted the benefit of the continuation of his probation.See id. We also note that prior to pleading guilty to the violation ofprobation in March 1999, Blair was aware of special condition two.In February 1999, Blair was instructed by his probation officerregarding that condition, and Blair acknowledged the condition inwriting. Because of Blair’s knowledge of the conditions of hisprobation, his repeated failure to raise the issue of the illegalenhancement in the trial court or in any prior appeal, and hisplea of guilty to a violation of probation in exchange for thecontinuation of his probation, we conclude that Blair waived hisdouble jeopardy claim and cannot now complain of the 1998enhancement of the conditions of his probation.” Blair v. State,805 So.2d 873 (Fla. 2d DCA 2001).

kk. Defendant was accused of violating a condition of his probation thathe randomly undergo urinalysis. He argued on the violation that therequirement was invalid because it was not set forth in the writtenprobation order. On appeal, the court ruled that the defendant hadaccepted the conditions of his probation by submitting to theurinalysis and could not object on the violation. Buckins v. State,789 So.2d 1184 (Fla. 4th DCA 2001).

ll. The defendant agreed to plead no contest to an attempted lewd act on

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a child for a sentence of five years probation with standard sexoffender conditions. Subsequently, the defendant was accused ofviolating the sex offender conditions. Only then did he argue that theywere invalid because they did not apply to attempts. The trial judgeagreed and the State appealed. The court reversed. “Thurman agreedto imposition of these conditions and also waived any objectionby waiting until after he had violated one of the conditions tochallenge the validity of the conditions.” State v. Thurman, 791So.2d 1228 (Fla. 5th DCA 2001).

mm. The defendant waived any claim that he was improperly placed onsex offender probation by waiting until he had violated one of thechallenged conditions to raise its illegality. Donovan v. State, 821So.2d 1099 (Fla. 5th DCA 2002).

nn. The defendant was convicted of sending written threats of death orbodily injury, some of which appeared in pleadings that the defendantfiled pro se in the trial court in a family law matter. The trial courtmade it a condition of his probation that he not file any pro sepleadings in any civil or family litigation. The defendant did notobject to this condition or file a motion to correct sentence. “In theabsence of a contemporaneous objection, a defendant may appeala condition of probation only if it is so egregious as to be theequivalent of fundamental error. Larson v. State, 572 So.2d 1368,1371 (Fla.1991). Here, we conclude that the prohibition againstpro se filings as a special condition of probation does notconstitute error, fundamental or otherwise.” Saidi v. State, 845So.2d 1022 (Fla. 5th DCA 2003).

oo. The defendant was on probation for possession of child pornography.His probation was revoked for possessing adult pornography. Onappeal, the court reversed. “Whether pornographic, obscene, orsexually stimulating material is relevant to a sex offender’sdeviant behavior pattern will undoubtedly depend on theunderlying facts and circumstances of the initial offense. In somecases, this determination will be relatively easy and straightforward.However, in other cases, when the material is not clearly or closelyrelated to the underlying offense, there must be evidence sufficientlylinking the materials to the defendant's deviant behavior pattern. Thiswill require the State to present evidence establishing a rationalrelationship between the pornographic, obscene, or sexuallystimulating materials and the defendant's deviant behaviorpattern. This may or may not require evidence in the form of

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expert testimony.” The court remanded for the trial judge to makethis determination. Sellers v. State, 16 So.3d 225 (Fla. 5th DCA2009).

B. Establishing elements necessary for revocation.

1. Probation cannot be violated unless sufficient notice of proscribed behavioris given. Mastick v. State, 409 So.2d 203 (Fla. 3d DCA 1982); Norris v.State, 383 So.2d 691 (Fla. 4th DCA 1980).

a. A violation must be material. “Although the Legislature failed todefine ‘material’ violation, this Court has stated that ‘a violation mustalways be willful and substantial to produce a revocation’” (citationsomitted) In essence, the right to receive adequate notice of theconditions of probation is in part realized through therequirement that a violation be substantial and willful to justifyrevocation. Indeed, a defendant could not willfully violate acondition of probation without being on adequate notice of theconduct that is prohibited.” Lawson v. State, 969 So.2d 222 (Fla.2007).

b. A violation must be willful. Where it was a condition of thedefendant's probation that he not consume alcoholic beverages, andthe evidence showed that he had consumed beer, but there was noevidence that the court or the probation officer ever informed thedefendant of this condition of probation, the violation was not willfuland probation was improperly revoked. Singletary v. State, 537So.2d 674 (Fla. 2d DCA 1989).

c. Testimony of a community control officer that she advised thedefendant of the conditions of his community control and watchedhim sign the form did not constitute hearsay and was sufficient to findthat the defendant was advised of the conditions. Tillman v. State,552 So.2d 1187 (Fla. 5th DCA 1989).

d. Defendant could not be violated for failing to file a report where hewas not told where and when it should be filed. Ware v. State,575 So.2d 759 (Fla. 4th DCA 1991).

e. Defendant should not have his probation revoked for technicalviolations where he has not been advised of the terms of his proba-tion. Washington v. State, 579 So.2d 400 (Fla. 5th DCA 1991).

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f. Pursuant to State v. Hart, 668 So.2d 589 (Fla.1996), all probationershave constructive notice of the general conditions 1 through 11 inthe form probation order contained in the rules of criminalprocedure. However, the court must give actual notice of specialconditions by orally announcing them at the time of sentencing.This is necessary to give the defendant an opportunity to make acontemporaneous objection. Rothery v. State, 757 So.2d 1256 (Fla.5th DCA 2000).

g. The court’s verbal pronouncement at the time of sentencing prevailsover inconsistent portions of a written order. Buckins v. State,789 So.2d 1184 (Fla. 4th DCA 2001).

h. General conditions must either be announced at the time ofsentencing or subsequently set forth in a written order. But thedefendant must make a timely objection at sentencing or bysubsequent motion pursuant to Rule 3.800(b). Jones v. State, 876So.2d 642 (Fla. 1st DCA 2004).

i. Where the defendant was ordered to pay restitution according toa certain schedule on the record, the fact that the schedule was notincluded in the written order did not eliminate that condition.Francois v. State, 923 So.2d 1219 (Fla. 3d DCA 2006).

j. See cases discussed earlier dealing with oral announcement ofconditions. Maddox v. State, 760 So.2d 89 (Fla. 2000); Kiriazes v.State, 798 So.2d 789 (Fla. 5th DCA 2001).

2. Defendant cannot be revoked for failing to obey an instruction of hisprobation officer unless there is a violation of a court imposed condition.Morales v. State, 518 So.2d 964 (Fla. 3d DCA 1988); Carson v. State, 531So.2d 1069 (Fla. 4th DCA 1988).

a. Probation cannot be revoked for violation of a standard conditionwhich is not marked on a standard probation form. Hoshaw v. State,533 So.2d 886 (Fla. 3d DCA 1988).

b. General conditions must either be announced at the time ofsentencing or subsequently set forth in a written order. But thedefendant must make a timely objection at sentencing or bysubsequent motion pursuant to Rule 3.800(b). Jones v. State, 876So.2d 642 (Fla. 1st DCA 2004).

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c. It was error to revoke the defendant's community control for failureto re-enroll in a psychological therapy program for sex offenderswhere enrollment in such a program was not an express conditionof community control, but rather was directed by his communitycontrol officer. Ashrafi v. State, 534 So.2d 886 (Fla. 4th DCA1988).

d. Where the defendant was ordered to complete a drug treatmentprogram, the failure to perform a urinalysis when directed by theprobation officer constituted a violation of the condition that thedefendant follow the instructions of the probation officer. This wasa violation even though the judgment did not specifically requiresuch testing because it was a follow-up to the requirement thatthe defendant complete the drug program. Williams v. State, 563So.2d 1129 (Fla. 4th DCA 1990).

e. In this case, the defendant was ordered to “undergo a SubstanceAbuse Evaluation and complete any treatment/education programrecommended by the Evaluator at [her] own expense.” Several yearslater the probation officer filed an affidavit of violation alleging aviolation of this condition because she refused to get in-patientalcohol treatment as required by her probation officer. Three dayslater a hearing was held. The defendant appeared with counsel. Theprosecutor and the defense attorney announced an agreement in whichthe VOP was withdrawn, and she agreed to these three additionalterms: (1) the defendant would go into an alcohol detoxificationcenter and stay there until released by the program authorities; (2) thedefendant would follow any treatment recommended by the program;(3) the defendant would not consume any alcohol at any time. Thetrial judge approved the agreement. Later the defendant was chargedwith a violation of probation based on two of the new conditions. Shewas convicted. At the violation hearing she made no argumentconcerning the legality of the new conditions. On appeal thedefendant argued that the violation was based on illegal conditions,because they were imposed as a result of an alleged earlier violationof a condition imposed by the probation officer. On appeal, the courtagreed. “We have several times held that probation or communitycontrol may not be revoked for violation of a condition orrequirement imposed unilaterally by the probation officer but notby the sentencing order.... [T]he record is clear that [thedefendant] was ordered to complete any treatment recommendedby her evaluator, but the alleged violation concerns her failure toget treatment ordered by her probation officer. Hence, we agree

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that the failure to get treatment charge does not state a propercharge for violation of probation.” (emphasis by the court). Thestate argued that the failure to object waived this point. The courtreasoned that this was like the failure to allege a charge and is notwaived. Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996).

f. “Probation may not be revoked for violation of a condition orrequirement unilaterally imposed by a probation officer but notby the trial court in the sentencing order. Perez v. State, 805 So.2d76 (Fla. 4th DCA 2002); Eddie v. State, 740 So.2d 583 (Fla. 1st DCA1999) (citing Kiess v. State, 642 So.2d 1141 (Fla. 4th DCA 1994)).However, the Florida supreme court has held that reasonabledelegations by the trial court of incidental discretion to a probationofficer are allowed. Larson v. State, 572 So.2d 1368 (Fla.1991). InLarson, the Court stated: ‘For example, we believe this can includeauthority for a probation officer to supervise the counselingrequired of some defendants, so long as this discretion is to beused only for rehabilitative purposes and does not take on thecharacter of an essentially judicial act.’ Id. at 1371. The writtenconditions of Ackerman's probation prohibited him from living within1,000 feet of a school, day care center, park, playground, or otherplace where children regularly congregate, as prescribed by the court(Condition 25). There was also a prohibition on unsupervised contactwith a child under the age of 18 without another adult present unlessauthorized by the sentencing court (Condition 28), and a prohibitionon working for pay or as a volunteer at any school, day care center,park, playground, or other place where children regularly congregate(Condition 29). There is, however, no condition which prohibits‘contact with playgrounds or other places where childrencongregate.’ The order of the probation officer resulting in theviolation is more than the exercise of delegated incidentaldiscretion. In this case, the probation officer went beyondsupervising the probationer’s judicially imposed conditions; heimposed a new condition. See, e.g. Paterson v. State, 612 So.2d 692(Fla. 1st DCA 1993).... Since only the court can impose probationconditions on Ackerman, the instruction by the probation officernot to have any contact with playgrounds or other places childrencongregate was not a valid limitation on Ackerman's conduct. Hisprobation could not be revoked for violating such an invalidcondition. See White v. State, 606 So.2d 1265 (Fla. 1st DCA 1992).”Ackerman v. State, 835 So.2d 354 (Fla. 5th DCA 2003).

g. The defendant was convicted of attempted sexual battery and placed

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on probation. The court found him guilty of violating this condition:“promptly and truthfully answer all inquiries directed to you by anyProbation or Community Control Officer, and allow your Officer tovisit in your home, at your employment site, or elsewhere, and youwill comply with all instructions your Officer may give you.’Appellant had been instructed by his probation officer not tosleep overnight at any address other than his approved addresswithout the probation officer’s permission.” The defendant reliedupon Ackerman and argued that this was beyond probation officer’sauthority. The court distinguished Ackerman. “The basis of thiscourt’s holding in Ackerman was that the probation officer’sinstruction had taken the character of a judicial act by essentiallyimposing a new condition of probation.... The probation officer’sinstruction was not limited to merely requesting informationfrom the probationer to better enable the probation officer tosupervise the probationer. By contrast, the probation officer’sinstruction in this case did not purport to be a blanketprohibition of appellant spending overnights at any residenceother than his own. Thus, the probation officer’s instruction didnot impose a new condition of the appellant’s probation and didnot ‘take on the character of an essentially judicial act.’ Larsonv. State, 572 So.2d 1368, 1371 (Fla.1991). Rather, it was areasonable instruction to assist the probation officer in hissupervision of appellant. Such information would enable theprobation officer to determine whether a minor child resided at theresidence at which appellant proposed to spend the night and, if so,to ensure that adequate measures were taken to prevent theprobationer from having unsupervised contact with the minor child.A probation officer may give a probationer directions which arereasonably intended to assist the officer in ensuring that theprobationer complies with the conditions of probation, providedthat such directions are not inconsistent with the probationorder. Parissay v. State, 687 So.2d 30 (Fla. 5th DCA 1997).”Hutchins v. State, 937 So.2d 799 (Fla. 5th DCA 2006).

h. The court properly revoked probation for violation of a condition thatdefendant follow all instructions of probation officer, which includedvisits with p.o. And p.o. directed defendant to report every month inthe first five days. “The visitation/reporting requirement, whichis an essential aspect of the supervisory duties of probation, doesnot constitute a new, special condition of probation. Rather, it isa reasonable, necessary procedure for implementing the official‘visitation’ or meeting requirement that clearly is set forth in the

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written condition.” Odom v. State, 15 So.3d 672 (Fla. 1st DCA2009).

i. The trial judge had ordered the defendant to submit to chemical testsat the request of his probation officer and not to use marijuana. Hewas not court-ordered to go to a drug program. The probationofficer ordered him to do that when the probation officerbelieved the defendant had used marijuana. The defendant’sprobation could not be revoked for violating that conditionimposed by the probation officer, and that was not incorporatedinto the condition that he follow the instructions of his probationofficer. Pettus v. State, 836 So.2d 1070 (Fla. 5th DCA 2003).

j. The provision that the probation officer determine her ability topay monetary obligations was invalid. Demar v. State, 840 So.2d381 (Fla. 1st DCA 2003).

k. It was error to revoke community control for not wearing anelectronic monitoring device where the court did not impose such arequirement as a condition of probation. The statute permits DOCto electronically monitor an offender who is on communitycontrol, but it does not permit DOC to impose it as a condition ofprobation. Anthony v. State, 854 So.2d 744 (Fla. 2d DCA 2003).

l. Curfew and weekly reporting were imposed as conditions of releasefollowing the arrest on vop. They were not conditions of probation;therefore, the defendant’s probation could not be revoked forviolating those conditions. Miller v. State, 936 So.2d 729 (Fla. 1stDCA 2006).

m. The court improperly found the defendant violated probation by notperforming 10 hours of community service per month. It was not acondition of probation that the defendant do community service inthat fashion. Jackson v. State, 959 So.2d 1282 (Fla. 1st DCA 2007).

3. It must be established that the probationer willfully violated the conditionsof his probation. Hudson v. State, 425 So.2d 1166 (Fla. 2d DCA 1983);Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980); McCarrick v. State,553 So.2d 1373 (Fla. 2d DCA 1989); Johnson v. State, 561 So.2d 1254 (Fla.2d DCA 1990); Young v. State, 566 So.2d 69 (Fla. 2d DCA 1990).

a. A defendant who makes a reasonable effort to comply is not guiltyof a willful violation. Richter v. State, 697 So.2d 939 (Fla. 2d DCA

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1997). See also Rochell v. State, 934 So.2d 586 (Fla. 1st DCA2006)(probation could not be violated for failure to pay costs wherethere was no evidence of a court-ordered payment schedule beforedefendant met with probation officer, and after meeting the defendantmade a partial payment before the due date and made reasonableefforts to satisfy his probation officer’s request).

b. “While it has been said that a ‘trial court has the inherent power torevoke probation for misconduct which demonstrates theprobationer's unfitness for probation.’ Washington v. State, 579So.2d 400, 401 (Fla. 5th DCA 1991), most cases reflect the viewthat ‘[p]robation may be revoked only upon a showing that theprobationer deliberately and willfully violated one or moreconditions of probation.’ Steiner v. State, 604 So.2d 1265, 1267(Fla. 4th DCA 1992).” Van Wagner v. State, 677 So.2d 314 (Fla.1st DCA 1996).

c. The court relied on Van Wagner in reversing violation andadjudication of defendant where adjudication had been withheld. Thetrial judge specifically ruled that the violation was not willful andsubstantial. Lindsay v. State, 54 So.3d 638 (Fla. 1st DCA 2011).

d. Willfulness: Ability to pay.

(1) Statutory language. §948.06(5), Fla. Stat.

(a) “In any hearing in which the failure of a probationeror offender in community control to pay restitution orthe cost of supervision as provided in s. 948.09, asdirected, is established by the state, if the probationeror offender asserts his or her inability to payrestitution or the cost of supervision, it is incumbentupon the probationer or offender to prove by clearand convincing evidence that he or she does nothave the present resources available to payrestitution or the cost of supervision despitesufficient bona fide efforts legally to acquire theresources to do so.”

(b) “If the probationer or offender cannot pay restitutionor the cost of supervision despite sufficient bona fideefforts, the court shall consider alternate measuresof punishment other than imprisonment.”

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(c) “Only if alternate measures are not adequate to meetthe state’s interests in punishment and deterrence maythe court imprison a probationer or offender incommunity control who has demonstrated sufficientbona fide efforts to pay restitution or the cost ofsupervision.”

(2) This case involved two issues. “Regarding the first issue, theunderlying constitutional principle is that an indigentprobationer should not be imprisoned based solely on inabilityto pay a monetary obligation. Based on our fidelity to thisprinciple, we approve the holdings of all the district courtsof appeal, except the Third District, that before a trialcourt may properly revoke probation and incarcerate aprobationer for failure to pay, it must inquire into theprobationer’s ability to pay and determine whether theprobationer had the ability to pay but willfully refused todo so. Under Florida law, the trial court must make itsfinding regarding whether the probationer willfullyviolated probation by the greater weight of the evidence.As to the second issue, an automatic revocation ofprobation without evidence presented as to ability to payto support the trial court's finding of willfulness violatesdue process. Accordingly, the State must present sufficientevidence of willfulness, including that the probationer has,or has had, the ability to pay, in order to support the trialcourt’s finding that the violation was willful. Once theState has done so, it is constitutional to then shift theburden to the probationer to prove inability to pay toessentially rebut the State's evidence of willfulness.However, while it is constitutional to place the burden onthe probationer to prove inability to pay, the aspect ofsection 948.06(5) that requires the probationer to proveinability to pay by the heightened standard of clear andconvincing evidence is unconstitutional.” Del Valle v.State, 80 So.3d 999 (Fla. 2011). See also Johnson v. State,126 So.3d 1129 (Fla. 4th DCA 2012); Brooks v. State, 114So.3d 965 (Fla. 5th DCA 2012).

(3) “[B]efore a person on probation can be imprisoned forfailing to make restitution, there must be a determinationthat person has, or has had, the ability to pay but has

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willfully refused to do so.” This is true even if the personagreed to waive the issue of ability to pay as part of a pleaagreement if the defendant did not initiate that action.Stephens v. State, 630 So.2d 1090 (Fla. 1994). See alsoDirico v. State, 728 So.2d 763 (Fla.4th DCA 1999)(thisapplies whether the plea is initiated at the request of thedefendant or the suggestion of the court).

(4) The decision in Stephens means that the State must bringforth evidence of the person’s ability to pay costs andrestitution to demonstrate a willful violation of probation.Robinson v. State, 773 So.2d 566 (Fla. 2d DCA 2000), rev.dismissed, 817 So.2d 949 (Fla. 2002). See also Oates v.State, 872 So.2d 351 (Fla. 2d DCA 2004); Hanania v. State,855 So.2d 92 (Fla. 2d DCA 2003); Ewell v. State, 852 So.2d436 (Fla. 5th DCA 2003); Knight v. State, 801 So.2d 160(Fla. 2d DCA 2001); Baker v. State, 789 So.2d 410 (Fla. 4thDCA 2001).

(5) “Before a probationer may be imprisoned for failure tomake restitution, there must first be a determination thatthe person has, or has had, the ability to pay and willfullyrefused to do so. Stephens v. State, 630 So.2d 1090, 1091(Fla. 1994).” Planes v. Felton, 650 So.2d 1091 (Fla. 3 DCA1995).

(6) The decision in Hewett v. State, 588 So.2d 635 (Fla. 5thDCA 1991), was quashed. In that case the Court held that,pursuant to §948.06(4), probation could be extended forfailure to pay restitution even though the defendant hadmade a good faith effort to pay. The Court said: “[W]e donot read the above statute as authorizing any extension ofprobation based on simple inability to pay restitution.Rather, the trial court has the choice only of ‘alternatemeasures’ or imprisonment, with the latter being stronglydisfavored. There is no ability to extend probation in theabsence of wilful violation of the terms of probation.Clark. Had the legislature intended the term ‘alternatemeasures’ to include coercive forms of detention orcontrol, we believe it would have said so expressly.” Themeasures contemplated include community service “orsimilar measures falling short of more coercive measuressuch as community control, probation, or imprisonment.”

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If the defendant fails to comply with the alternate measurethen he or she may be subject to contempt proceedings or aprobation violation if any probation remains. “Anotheralternative might be entry of a judgment against theprobationer, which could then be enforced against theprobationer’s property under the applicable law.” Hewettv. State, 613 So.2d 1305 (Fla. 1993).

(7) In order to violate community control or probation for failureto pay costs court must make a specific finding of ability topay. White v. State, 552 So.2d 980 (Fla. 2d DCA 1989);Whisler v. State, 569 So.2d 934 (Fla. 1st DCA 1990);Haynes v. State, 571 So.2d 1380 (Fla. 2d DCA 1990).George v. State, 577 So.2d 996 (Fla. 1st DCA 1991).

(8) The defendant appealed his revocation of probation. “We ...remand for entry of a finding that McNeil had the abilityto pay certain costs that the court imposed. AlthoughMcNeil argues on appeal that the trial court’s failure to makea finding that he had the ability to pay those costs requiresreversal of the revocation based on his failure to pay the costs,we cannot agree.... In the instant case, the State introducedevidence that McNeil had held a paying job in December2003. However, by McNeil’s own admission at the revocationhearing, he voluntarily quit that job, leaving himunemployed and without funds to pay the costs involved.Pursuant to section 948.06(5), Florida Statutes (2003),once a probationer asserts the inability to pay, he or shemust prove by clear and convincing evidence that he orshe does not have the present resources available to paydespite ‘sufficient bona fide efforts legally to acquire theresources to do so.’ Because defense counsel failed toattempt to rehabilitate McNeil by showing that he hadmade bona fide efforts to acquire the resources to pay, weconclude that the record supports a finding that McNeilhad the ability to pay the costs.” McNeil v. State, 908So.2d 556 (Fla. 2d DCA 2005).

(9) The court reversed the finding that the defendant had violatedprobation by failing to pay costs of supervision because theState failed to prove willfulness. Mr. Blackwelder wasordered to pay $30 per month toward the costs of hissupervision, was advised of this condition, but was $658.20

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in arrears. At the hearing it was established that the probationofficer had no knowledge of the defendant’s financialsituation except that he had a job one month before thehearing. “The trial court concluded that it could not considerthe matter because of the defense’s omission to raise the issueearlier.... The Supreme Court of Florida has held thatwhen it has been alleged that a probationer has violatedprobationary conditions by failing to pay court-orderedcosts, ‘there must be a determination that the person has,or has had, the ability to pay but has willfully refused todo so.’ Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994).Accordingly, the State is required to present evidence of theprobationer’s ability to pay to demonstrate the willfulness ofthe violation. (Citation omitted) Moreover, the State does notmeet its burden merely by introducing evidence thatestablishes the specific amount the probationer is inarrears.(Citations omitted). Contrary to the view expressedby the trial court at the revocation hearing, the State hadthe burden of proving that Mr. Blackwelder had theability to pay the costs of his supervision. The defense didnot have to raise the issue to ‘shift’ the burden to theState. Because the State failed to present the requisiteevidence of Mr. Blackwelder’s ability to pay, it did not carryits burden of proving that Mr. Blackwelder willfully andsubstantially violated condition 27 of his probation.”Blackwelder v. State, 902 So.2d 905 (Fla. 2d DCA 2005).See also Limbaugh v. State, 16 So.3d 954 (Fla. 5th DCA2009); Marzendorfer v. State, 16 So.3d 957 (Fla. 1st DCA2009); Odom v. State, 15 So.3d 672 (Fla. 1st DCA 2009);Ramsey v. State, 12 So.3d 883 (Fla. 1st DCA 2009);Shepard v. State, 939 So.2d 311 (Fla. 4th DCA2006)(notwithstanding the statute, the constitution requiresevidence and a finding of ability to pay).

(10) The defendant was ordered to pay $20.00 per month forprobation supervision and court cost. He paid $10.00 to$20.00 a month, but when he was in jail he did not pay. Thetrial judge did not make a finding that he had the abilityto pay. Thus, the court reversed the revocation ofprobation. Martin v. State, 937 So.2d 714 (Fla. 1st DCA2006). See also Odom v. State, 15 So.3d 672 (Fla. 1st DCA2009).

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(11) “[B]ecause the State failed to establish at the violation ofprobation hearing that Sprague had the ability to pay hiscourt costs and costs of supervision, we reverse the trialcourt’s findings that he violated conditions 2 and 9.”Sprague v. State, 920 So.2d 1248 (Fla. 2d DCA 2006).

(12) “The State cites section 948.06(5), Florida Statutes (2004),McQuitter v. State, 622 So.2d 590 (Fla. 1st DCA 1993), andGreen v. State, 620 So.2d 1126 (Fla. 1st DCA 1993), for theproposition that once the State makes an initial showing thatthe probationer failed to pay court-ordered costs, the burdenshifts to the probationer to prove by clear and convincingevidence that he lacked the ability to pay. See also Word v.State, 533 So.2d 893 (Fla. 3d DCA 1988). However, section948.06(5), despite its plain language, cannot relieve theState of its burden to prove that the violation was willfulby proving the probationer’s ability to pay. Osta v. State,880 So.2d 804 (Fla. 5th DCA 2004). Moreover, McQuitter,Green, and Word were decided before our supreme court’sdecision in Stephens v. State, 630 So.2d 1090, 1091(Fla.1994). Thus it is doubtful that these pre-Stephenscases remain valid.” Blackwelder v. State, 902 So.2d 905(Fla. 2d DCA 2005).

(13) The court erred in extending the defendant’s probation forfailure to pay restitution because the uncontroverted evidenceshowed that he did not have the ability to pay. Moore v.State, 724 So.2d 117 (Fla. 3d DCA 1998).

(14) “In determining a defendant’s financial resources in aviolation of probation based upon failure to pay monetaryrestitution [the court cannot] consider the defendant’s interestin homestead property and order a defendant to executea note and mortgage in favor of the victims and payableupon death to secure restitution.’ Exemption from forcedsale is a constitutional right which is not limited to civilproceedings. Downing v. State, 593 So.2d 607 (Fla. 5thDCA 1992).

(15) The defendant waived his right to a determination of hisability to pay restitution at the time the order was enteredbecause he failed to object; however, a showing of solvencymust still precede revocation of probation for nonpayment

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of restitution. Earle v. State, 519 So.2d 757 (Fla. 1st DCA1988).

(16) The court can order the defendant to pay statutorilymandated costs and public defender’s fees withoutdetermining ability to pay. That determination must bemade at the time of any enforcement action. State v.Beasley, 580 So.2d 139 (Fla. 1991); Milhouse v. State, 673So.2d 911 (Fla. 2d DCA 1996); Stallworth v. State, 640So.2d 218 (Fla. 2d DCA 1994).

(17) The state must show that the defendant has the ability to

pay the monthly costs of probation before a violation fornonpayment. Carson v. State, 531 So.2d 1069 (Fla. 4th DCA1988).

(18) Where the defendant was accused of violating probation bynot paying costs, fines and restitution, it was necessary forthe state to present sufficient evidence to support a findingthat the defendant had the ability to make the financialpayments. Haynes v. State, 571 So.2d 1380 (Fla. 2d DCA1990).

(19) Where the defendant was the only witness at the hearingand admitted that he had not paid restitution, the statehad no further burden to produce evidence to prove thatelement of the violation, but where the only evidence ofability to pay restitution was the defendant's testimonythat he could not pay restitution, the evidence wasinsufficient to violate probation. Costello v. State, 567So.2d 1032 (Fla. 4th DCA 1990).

(20) Where it was undisputed at the hearing that the defendantwas not financially able to pay the $440 a month restitutionher probation could not be revoked because her failure to paywas not willful. Kolovrat v. State, 574 So.2d 294 (Fla. 5thDCA 1991).

(21) “As to the court’s order revoking King’s probation for failureto pay the specified amount of monthly restitution and courtcosts, we also reverse. There is no evidence in the record tosupport the finding that King’s failure to make restitutionpayments was willful. King’s testimony that he only

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earned $200 a week and could not find employment tosupplement his income was uncontested. See Costello v.State, 567 So.2d 1032, 1033 (Fla. 4th DCA1990)(probationer’s uncontested testimony regarding hisinability to pay cannot arbitrarily and totally be rejected).This testimony was confirmed by the probation officer’stestimony that she did not believe King had the ability to paycosts and that she had been authorized by the court, in a priorproceeding, to allow King to use his income to meet his childsupport responsibilities before using it for restitutionpurposes.” King v. State, 835 So.2d 1271 (Fla. 4th DCA2003).

(22) The lack of present ability to pay does not preclude the courtfrom ordering restitution even if the defendant is making agood faith effort to secure employment. The defendant mustalso make a showing of a lack of potential future financialresources. Even if the defendant should be unable to pay,in the event of a violation of probation he or she must begiven the opportunity to show that they lack the financialresources despite good faith efforts to secure them. Nix v.State, 604 So.2d 920 (Fla. 1st DCA 1992).

(23) Where the defendant was accused of violating his probationby failure to pay costs but the evidence indicated that therewas confusion as to whether the defendant knew that aprevious waiver of costs had been discontinued by theprobation officer, the evidence was insufficient to establisha willfully violation and probation should not have beenviolated. Jordan v. State, 610 So.2d 616 (Fla. 1st DCA1992).See also McCoy v. State, 730 So.2d 803 (Fla. 2d DCA1999)(defendant’s probation could not be properly revokedfor not paying costs where it resulted from confusion aboutwhen they were due).

(24) The defendant’s probation could not be violated for failureto comply with the schedule of payment for restitutionestablished by the probation officer. Jordan v. State, 610So.2d 616 (Fla. 1st DCA 1992).

(25) The defendant’s probation could be revoked where he wasordered to pay restitution in twelve equal installments,but admitted he had failed to make any of the

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installments. The fact that there was still time on hisprobation left to pay did not require a different result.Francois v. State, 923 So.2d 1219 (Fla. 3d DCA 2006).Shepard v. State, 939 So.2d 311 (Fla. 4th DCA 2006)(sameruling where court ordered that court costs be paid in monthlyinstallments).

(26) The court did not abuse its discretion in finding the defendantguilty of violating his probation where at the time that theaffidavit was filed he was in arrears, but was current atthe time of the hearing. Moore v. State, 623 So.2d 795 (Fla.1st DCA 1993).

(27) Where the defendant had paid half of the court costs, it wasconceivable that he could have paid the balance before theend of his term of probation; therefore, he should nothave been violated. Moore v. State, 623 So.2d 795 (Fla. 1stDCA 1993).

(28) It is improper to revoke probation for failure to pay costs inthe absence of proof of ability to pay. It is insufficient thatthe probation officer “presumed” the defendant could pay.Manies v. State, 621 So.2d 679 (Fla. 2d DCA 1993). See alsoGuderian v. State, 933 So.2d 17 (Fla. 2d DCA 2006)(trialcourt erred in finding a violation for failure to pay costs wherethe probation officer testified he had no knowledge ofwhether the defendant had a job or how much money heearned and there was no other evidence of ability to pay);Reed v. State, 865 So.2d 644 (Fla. 2d DCA 2004)(simplyshowing amount of arrearage is insufficient); Stevens v.State, 823 So.2d 319 (Fla. 2d DCA 2002)(trial court erred inrevoking probation where the defendant was an unemployedsingle stay-at-home mother).

(29) The evidence was insufficient to show that the defendant hadthe ability to pay the costs of supervision; therefore, it waserror to violate her probation for violating that condition.Iaconetti v. State, 668 So.2d 1079 (Fla. 2d DCA 1996).

(30) The evidence was insufficient to establish a willful violationfor failure to pay costs where the defendant eliminated thearrearage prior to the hearing and the evidence indicatedthat the defendant was unable to pay at the relevant time.

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Pinder v. State, 653 So.2d 469 (Fla. 4th DCA 1995).

(31) “While the restitution order is enforceable, defendant maystill raise his inability to pay in a subsequent violation ofprobation proceeding.” The 1995 version of the statuterequires that the defendant’s ability to pay be considered atthe time of any attempts to enforce. Schotsch v. State, 670So.2d 127 (Fla. 4th DCA), rev. denied, 679 So.2d 774 (Fla.1996).

(32) It was error for the trial court to violate the defendant'sprobation based on the failure to pay costs unless the courtmade a finding of financial ability to pay. Hammond v.State, 679 So.2d 347 (Fla. 4th DCA 1996).

(33) The defendant was violated for failing to pay the $50.00 costof supervision. The defendant argued that he could not beviolated because the trial judge failed to find that he had theability to pay. On appeal, the court rejected the argument“given the fact that appellant had $50 in his possession atthe time he was arrested on the warrant for violating hisprobation, which sum would have been sufficient to payhis current cost of supervision.” The fact that the defendantdid not have the ability to pay $300.00 in court costs does notaffect the decision on his ability to pay the cost ofsupervision. Monroe v. State, 679 So.2d 50 (Fla. 1st DCA1996).

(34) The court erred in revoking the defendant’s probation forfailure to pay costs “where the evidence [did] not indicatethat he had the ability to pay at the relevant times.” Lopezv. State, 722 So.2d 936 (Fla. 4th DCA 1998).

(35) It was error for the court to revoke community control wherethe defendant failed to perform community control in lieu ofpaying the cost of supervision, where the defendant wasunable to pay the costs. “[T]he condition permittingdefendant to perform community service hours in lieu ofpaying costs of supervision has been held to be invalid.”Royster v. State, 691 So.2d 1196 (Fla. 4th DCA 1997).

(36) “In Royster we held that ‘[b]ecause a defendant's dueprocess rights would be implicated if forced to pay court-

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imposed costs [by performing community service] if thedefendant can show an inability to pay, it follows thatdefendant may not be required to perform communityservice in lieu thereof if unable to make such payment...id.’” In this case that rule did not apply because the defendantwas able to pay. Llumbet v. State, 698 So.2d 381 (Fla. 4thDCA 1997).

(37) The trial judge ordered that the defendant pay 25% of his netincome as restitution. When he failed to pay, the courtrevoked his probation and sentenced him to jail. Thedefendant argued that some months his expenses exceeded hisincome. The trial judge responded that this was taken intoaccount in the order that he pay 25% of his net income. Onappeal, the court reversed because the finding of fact that thedefendant “had the ability to pay ... appears to have beenbased not on the evidence introduced during the revocationhearing, but on the previous determination of ability to paythat the trial court had made when it modified Vincent'sprobation. This automatic fact-finding resulted inimprisonment without a determination of Vincent’s abilityto pay in violation of his right to due process and equalprotection of the law as well as the prohibition againstimprisonment for failure to pay a debt.” The court had tomake a finding that the defendant had the ability to pay beforerevoking probation as well as before ordering restitution.Vincent v. State, 699 So.2d 806 (Fla. 1st DCA 1997).

(38) The trial judge revoked the defendant’s probation for failingto pay restitution, adjudicated the defendant, and imposed aterm of community control. This occurred after sevenhearings. The defendant’s position was that she was medicallyunable to work and did not have the ability to pay therestitution. At the fourth hearing the court was presented witha letter from a doctor saying that there was no medical reasonthat the defendant could not be employed. The judge told herthat she either needed to get a job or produce a letter showingthat she was incapable of being employed. At the seventhhearing the defendant produced a letter from her employershowing that she was working thirty to forty hours a week at$5.00 per hour. The trial judge concluded that the defendantcould have worked all along and revoked her probation. Onappeal, the court reversed. “When deciding whether to

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revoke probation for failure to pay restitution, ‘theremust be a determination that the person has, or has had,the ability to pay but has willfully refused to do so.’” Thecourt noted that while there was evidence that the defendantwas capable of being employed at the time of the fourthhearing, the State failed to present any evidence that thedefendant had the ability to work or to pay restitution“from the beginning of her probationary period up to thetime of her fourth hearing.” Further there was noevidence that the defendant did not seek employment afterthe fourth hearing. While the record reflects that thedefendant found employment, “the trial court failed todetermine whether she then had the ability to payrestitution and that she willfully refused to do so.” Thecourt also ruled that because the defendant’s “originalsentence resulted in no adjudication, the adjudication thetrial court entered following the revocation of probationmust be reversed.” Cherry v. State, 718 So.2d 294 (Fla. 2dDCA 1998).

(39) Defendant was accused of violating her probation by notpaying child support. The trial judge concluded that anyevidence as to her ability to work and her ability to paywas irrelevant. This was error. Gomez v. State, 724 So.2d1205 (Fla. 2d DCA 1998).

(40) “To revoke a defendant’s probation based upon failure tofulfill a monetary condition, the trial court must specificallyfind that the probationer had the ability to pay andwillfully refused to do so. (citations omitted) The State bearsthe burden to demonstrate appellant's ability to pay and thewillful nature of his refusal. (citation omitted) On remand, weinstruct the trial court to determine appellant's ability to payand whether he willfully refused to do so. The trial courtshould then make the appropriate factual findings or, if theevidence does not support such findings, vacate this groundas a basis for revocation of appellant's probation.” This caseinvolved costs of supervision, courts, and public defenderfees. Aidone v. State, 763 So.2d 1127 (Fla. 4th DCA 1999).

(41) The trial court erred in violating probation for failure topay court costs where the State presented no evidence ofability to pay. In the absence of such proof, the violation is

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not willful. Glasier v. State, 849 So.2d 444 (Fla. 2d DCA2003).

(42) The trial judge found the defendant guilty of violatingprobation by failing to pay the costs of supervision and notpaying fines and costs by the deadline. The defendant“testified that he was unable to work and pay his fines andcosts because of recent knee surgery.” On appeal, the courtreversed. “[T]o show a willful violation of probation, theState had to prove that Hanania had the ability to pay thecosts and fines. See Knight v. State, 801 So.2d 160, 161(Fla. 2d DCA 2001). The State failed to meet its burden,and Hanania established his inability to pay.” Hanania v.State, 855 So.2d 92 (Fla. 2d DCA 2003).

(43) The defendant was found guilty of violating his probation byfailing to pay court-ordered costs. The court reversed. “[T]heState established that Davis was in arrears in paying thosecosts. Davis’s supervising officer testified that in his view, aperson who is able to get a job had the ability to pay. Hestated that Davis was to pay a certain amount each month, buthe acknowledged that Davis had until the end of hissupervision to fully pay the costs. The State presented noother evidence concerning Davis’s ability to make therequired payments.” Defendant presented evidence showinginability to pay. “Evidence that a defendant has failed tomake required payments is, by itself, insufficient tosupport a revocation of community control. The Statemust also present evidence establishing that the defendantwas able to pay in order to demonstrate the willful natureof the violation.” The State did not do that here. “Moreover,there was no showing that Davis had the ability to earnmore than he had been earning or that he was willfullyfailing to acquire or maintain employment.” Davis v.State, 867 So.2d 608 (Fla. 2d DCA 2004).

(44) The defendant was ordered to pay court costs in the amountof $359 and was ordered to perform fifty hours of communityservice at the rate of five hours per month. “Neither the courtcosts condition nor the community service conditioncontained a schedule indicating when Shipman was requiredto begin or to complete the tasks.” The trial court found thatdefendant violated his probation by not paying court costs and

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doing community service. “[B]ecause the order placinghim on [probation] did not specify either a paymentschedule or a time limit for paying costs and fees, or atime limit for completing community service, appellanthad the entire time of his probation in which to do so. Thisrevocation, which occurred before the term was up, was thusimproper. Id. (citation omitted). Finally, we note that this caseis not one in which the probationer due to his dilatoryconduct has placed himself in a position where it will beimpossible to satisfy a condition of his probation beforethe conclusion of the probationary term. Specifically withrespect to the community service condition, more thanadequate time remained for Shipman to complete hisobligation by performing community service at the rate of fivehours per month for the requisite number of months [whichwas what probation order required]. We therefore reverse thetrial court’s order revoking Shipman’s probation.” Shipmanv. State, 903 So.2d 386 (Fla. 2d DCA 2005).

(45) The court reversed revocation based on failure to meetfinancial obligations. The evidence did not support a findingthat the failure was willful and substantial. The record did notindicate “that a court-ordered payment schedule was createdbefore Appellant met with his probation officer. After thatmeeting, Appellant made a partial payment before the duedate and made reasonable efforts to satisfy his probationofficer’s requests.” Rochell v. State, 934 So.2d 586 (Fla. 1stDCA 2006).

(46) Violation could not be based on failure to pay cost ofsupervision where State failed to present any evidenceshowing that the defendant had the ability to pay. Roganv. State, 934 So.2d 593 (Fla. 5th DCA 2006).

(47) “Lawson also appeals the finding that he violated condition 2of his probation by failing to pay $50.00 toward the cost ofsupervision each month. Because the State failed toestablish that Lawson had the ability to pay that amount,we believe that the trial court abused its discretion infinding that Lawson willfully violated this condition. SeeEdwards v. State, 892 So.2d 1192, 1194 (Fla. 5th DCA 2005)(‘When the violation is for failure to pay restitution or costs,the State must adduce evidence of [the probationer’s] ability

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to pay to demonstrate willfulness.’).” Lawson v. State, 941So.2d 485 (Fla. 5th DCA 2006).

(48) “Casey L. Taylor appeals an order revoking his probation forfailure to pay restitution. He contends that the trial courtabused its discretion in revoking his probation because itdid not order him to pay a specific monthly amounttowards restitution and the evidence did not establish hisability or willful refusal to pay restitution. We disagreeand affirm. Appellant was placed on six months probationon each count, to run consecutively, with a condition to payapproximately $20,800 in restitution. The court ordered thatthe restitution be paid in equal monthly installments duringhis probation. Appellant signed an offender financialobligation agreement requiring him to make a minimummonthly payment of $2,690.07. [A]ppellant's probationofficer testified that appellant made only four payments of$100 toward his restitution. Appellant testified that his netmonthly income is $1,400. His monthly expenses include$400 for rent, $400 for food, $120 for lunch at work,$100-$200 for clothes and work boots, and $200 for his cellphone. Appellant explained that he needs a cell phone forwork, as he works construction and must be able to call 911or his company in case of emergency. He acknowledged,however, that he is not a supervisor and that other men on hiscrew also have cell phones. After hearing appellant'stestimony concerning his income and expenses andmaking some recalculations based on the reasonablenessof his claimed expenses, the trial court found thatappellant had $150 a month unaccounted-for-income. Thecourt determined that appellant's $200 monthly paymentfor a cell phone was excessive and unnecessary, and awillful violation, in itself. The court also found thatalthough appellant “may not be able to make all of hismonthly [restitution] obligation, he certainly could paymore than what he's doing.” Consequently, the trial courtfound appellant to be in willful and material violation of hisprobation.... In this case, we ... find no abuse of discretionin the trial court’s determination that, though appellantmay have been unable to pay the full monthly amountordered, he could have paid more than he did towards hisrestitution obligation.” Taylor v. State, 949 So.2d 345 (Fla.4th DCA 2007).

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(49) The court found ability to pay restitution based on the fundsof the wife and adult son. Without those funds the defendantdid not have the ability to pay. “The trial judge erred inbasing ability to pay on the family income. It was not thefamily members who were sentenced to probation andrestitution but him alone. To find that he violatedprobation, the state was required to prove that he alonehas the ability to pay but refuses to do so. The evidence isclear from his income that he cannot even make thenecessaries of life, let alone pay restitution.” Hoey v. State,965 So.2d 360 (Fla. 4th DCA 2007).

(50) “The defendant’s probation was revoked for failure to paysupervision and court costs.“[W]e reverse the findings inregard to the failure to pay the supervision and courtcosts since there was no evidence or findings thatappellant was able to pay those fees.... We reject theState’s suggestion that the findings can be sustained onthe basis that appellant knew he could performcommunity service hours in lieu of paying the costs atissue, but failed to do so. Appellant was never chargedwith a violation for failing to perform community servicehours.” The judge also revoked probation for commission ofa new offense. But because the record did not make it clearthat the judge would have given the same sentence basedsolely on the new offense, the court remanded forreconsideration. Wilson v. State, 967 So.2d 1107 (Fla. 4thDCA 2007).

(51) “The circuit court found that Mr. Thompson had violatedcondition twelve of his probation by failing to pay $1074 incourt costs. On appeal, Mr. Thompson argues that the circuitcourt abused its discretion by finding him in violation ofcondition twelve because the State failed to prove that he hadthe ability to pay the court costs. ‘[W]here the violationalleged is a failure to pay costs or restitution, there mustbe evidence and a finding that the probationer had theability to pay.’ (Citation omitted) With commendablecandor, the State concedes that there was no evidencepresented at the hearing concerning Mr. Thompson’s abilityto pay the court costs and that the circuit court failed to makethe required finding. Consequently, the circuit court abused its

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discretion in finding that Mr. Thompson had violatedcondition twelve.” Thompson v. State, 974 So.2d 594 (Fla.2d DCA 2008).

(52) “The defendant’s probation was revoked for failure to paysupervision and court costs.“[W]e reverse the findings inregard to the failure to pay the supervision and courtcosts since there was no evidence or findings thatappellant was able to pay those fees.... We reject theState’s suggestion that the findings can be sustained onthe basis that appellant knew he could performcommunity service hours in lieu of paying the costs atissue, but failed to do so. Appellant was never chargedwith a violation for failing to perform community servicehours.” The judge also revoked probation for commission ofa new offense. But because the record did not make it cleatthat the judge would have given the same sentence basedsolely on the new offense, the court remanded forreconsideration. Wilson v. State, 967 So.2d 1107 (Fla. 4thDCA 2007).

(53) “A trial court necessarily exercises discretion when decidingwhether a probationer has violated a condition of probation,warranting return to jail or prison.... ‘[r]evoking probationfor failure to pay costs without a finding that theprobationer had the ability to pay requires reversal.’(Citations omitted) Here, the trial court did not make aspecific finding as to appellant’s ability to pay restitution.Accordingly, reversal is required on this ground.” Friddle v.State, 989 So.2d 1254 (Fla. 1st DCA 2008).

(54) The defendant failed to register with DHSMV and to securean identification card within 48 hours of probation. The courtviolated his probation. On appeal, the court reversed. “Theuncontradicted evidence demonstrates appellant made a goodfaith effort to register and obtain a license in accordance withsection 944.607, Florida Statutes. The only reason he didnot complete the registration was because he lacked $10 toobtain a new license. In fact, appellant obtained thelicense after attempting to comply with the requirementthree days later, as soon as he had obtained the necessaryfunds. While the trial court found that appellant couldhave asked the probation officer for the money, merely

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because he did not take the wisest course of action, wecannot say the failure to register was willful andsubstantial. Van Wagner v. State, 677 So.2d 314, 317 (Fla.1st DCA 1996) (holding where a probationer makesreasonable efforts to comply with a condition of probation,the violation cannot be deemed willful). Because wedetermine that appellant made a good faith effort to comply,we must also reverse the violation relating to failing to followthe lawful instructions of his community control officer.”Easterling v. State, 989 So.2d 1285 (Fla. 1st DCA 2008).

(55) The court relied on Easterling in support of reversal ofviolation for failure to maintain a monitoring device and toattend sex offender counseling. The defendant testified thatthe alleged violation happened because, despite his effortto get a job he had been unsuccessful; therefore, he couldnot pay his utility bill or the cost of counseling. The state’switness corroborated that he had violated his probationbecause of inability to pay these costs. Washington v. State,84 So.3d 1061 (Fla. 1st DCA 2011).

e. Willfulness: conditions unrelated to payment [SEVERAL OFTHE CASES IN THIS SECTION DEALING WITH THEFAILURE TO SPECIFY WHEN THE DEFENDANT MUSTENROLL IN PROGRAMS AND COMPLETE THEM MUSTBE CONSIDERED IN LIGHT OF OTHER DECISIONSMENTIONED HEREAFTER MODIFYING OR REVERSINGTHOSE CASES].

(1) It was improper to violate the defendant's probation for failureto report, where he was in jail at the time he was to report.Frazier v. State, 587 So.2d 660 (Fla. 3d DCA 1991).

(2) The court relied on the decision in Frazier in support of theconclusion that the defendant could not be violated forchanging his address when he was incarcerated from thetime of his arrest to the time of the hearing. Boyington v.State, 70 So.3d 631 (Fla. 1st DCA 2011).

(3) It was improper to violate the defendant’s probation forfailure to comply with special conditions where the failurewas due to the fact that the defendant was incarcerated onunrelated charges during the last three months of the

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probationary period. Murtha v. State, 777 So.2d 1067 (Fla.3d DCA 2001).

(4) It was a condition of defendant’'s probation that he “notassociate with gang members.” In order to violate probationit was necessary that the state prove that the defendant knewthe individuals were gang members. In the Interest ofD.S., 652 So.2d 892 (Fla. 4th DCA 1995).

(5) The defendant stopped reporting to the probation officer. Hesaid he was sick and hospitalized. “The trial court did notabuse its discretion in finding that the defendant violated thecondition of his probation requiring him to report monthly.The defendant testified he was aware it was his duty to report.He also testified his parole officer had given him contactinformation. Even if he were hospitalized from Septemberthrough the end of November, he failed to report for themonths of December through April. The trial court foundhis reasons for failing to report for these months not to becredible.” Roundtree v. State, 955 So.2d 1184 (Fla. 3d DCA2007).

(6) Revocation of probation for failure to complete a drug rehabprogram was improper because the evidence was insufficientto show that the failure was willful and substantial. Such aviolation must be shown to be the probationer’s fault. Inthis case, the undisputed evidence showed that thedefendant had a serious illness which prevented him fromfinishing the program. He indicated a willingness tocomplete it. Rainer v. State, 657 So.2d 1230 (Fla. 4th DCA1995).

(7) Where the defendant violated a condition that he not call acertain telephone number, but the evidence indicated that hemay have inadvertently done so, revocation of probation wasimproper. Hudson v. State, 425 So.2d 1166 (Fla. 2d DCA1983).

(8) Where the defendant was prohibited from having contact withhis stepchildren, and on one occasion he went to a park wherethose children played, made an effort to determine whetherthey were present, and upon seeing them he never came anycloser to them than 98 feet and left the area immediately, the

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Court found that the defendant had made a reasonable effortto comply. Scott v. State, 485 So.2d 40 (Fla. 2d DCA 1986).See also Conhagen v. State, 942 So.2d 444 (Fla. 2d DCA2006)(evidence was insufficient to show defendant violatedprohibition against unsupervised contact with children wherehe was at a public event where children were present, but thedefendant had no reason to believe they would be).

(9) The defendant was accused of violating his probation byfailing to report to his probation officer upon his release fromprison and failing to make monthly reports. His signaturewas not on the bottom of the order setting forth theconditions of his probation. There was insufficient evidencethat the sentencing judge advised the defendant of theconditions of his probation or that anyone else had soinstructed him. Thus, the greater weight of the evidenceestablished that he had not willfully violated his probationand it was error to revoke his probation. Hightower v. State,529 So.2d 726 (Fla. 2d DCA 1988).

(10) The defendant was accused of violating his probation byfailing to report to his probation officer upon his release fromjail. He could not be violated where “the only evidencesubmitted by the state to prove that the defendant wasinstructed to report to the probation office was theuncorroborated hearsay testimony of the probationsupervisor. The source of this hearsay was an entry in thesupervisor’s file, the author of which was undisclosed.The court pointed out that in Brevard county this problem ofnotice is solved by putting it in the probation order. Crume v.State, 703 So.2d 1216 (Fla. 5th DCA 1997).

(11) Where it was a condition of probation that the defendant notchange employment without the consent of his probationofficer, it was improper to revoke his probation on thegrounds that this condition was violated where the defendantwas fired from his job. The law does not require a futileact. Hoshaw v. State, 533 So.2d 886 (Fla. 3d DCA 1988).

(12) There was insufficient proof of willfulness where thedefendant was accused of not filing written reports; all of themonths when he did not file reports came after he was toldthat he was being violated on another condition; he testified

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that he was led to believe after that first violation he need notfile written reports, but he need only appear in person; he didappear in person; and the probation officer testified that shedid not tell him to stop filing written reports, but she admittedthat he continued to appear for his appointments. On appeal,the Court found that there was, at least, confusion concerningthe filing of the written reports. Murvin v. State, 541 So.2d1344 (Fla. 2d DCA 1989).

(13) The defendant was told to leave the county by a certain timethe day after the sentencing. He was accused of violating thiscondition of his probation. The evidence showed that: (1)after his release from custody the day after the sentencing thedefendant cashed a check and went to the bus station; (2) atthe bus station he saw a sign stating that the only bus to thearea where he had been instructed to go left at 8:15 a.m.,which made it impossible for him to leave until the nextmorning; (3) a ticket agent advised the defendant that no otherbus was available to the involved area; (4) the defendantpurchased a ticket on that bus; (5) most of the day thedefendant stayed at the bus station; (6) in the late afternoon afriend invited him to stay at another friend's house; (7) thedefendant went to that house and later to a restaurant; (8) thenext thing the defendant remembered was waking up bound,stripped of his money, wallet and identification and sufferinghead injuries; (9) the defendant spent the next nine days in thehospital. The evidence was insufficient to establish a violationbecause the state must prove a willful violation and theevidence showed a good faith effort to comply. “where adefendant makes reasonable efforts to comply with theconditions of his probation, his failure to comply may notbe willul.” Jacobsen v. State, 536 So.2d 373 (Fla. 2d DCA1988).

(14) For facts see discussion above under “hearsay.” The courtrejected the finding that the defendant violated his probationby moving from his brother’s residence. “The State had theburden of proving, by the greater weight of the evidence,that this violation was willful and substantial.” Thedefendant argued that the violation was not willful because hemoved in order to avoid having contact with children, whichwould have also been a violation of probation. “Adefendant’s failure to comply with a probation condition

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is not willful where his conduct shows a reasonable, goodfaith attempt to comply, and factors beyond his control,rather than a deliberate act of misconduct, caused hisnoncompliance.” In this case, the defendant said that whenhe got to California he had to choose between violating hisprobation by having contact with the children in his brother’shouse or not living in his brother’s house. The court ruled thatbecause there was insufficient evidence to show that thedefendant knew that the children were in his brother’s housewhen he left for California, the court could not find that hewillfully violated his probation. The facts supported theconclusion that the defendant did not have the money toreturn from California. Soto v. State, 727 So.2d 1044 (Fla. 2dDCA 1999). See also Soliz v. State, 18 So.3d 1094 (Fla. 2dDCA 2009)(where defendant was given 30 days to move outof area, found a place and rented it, but defendant said itwould not be ready for one to two weeks beyond the 30 daysand that he had not thought of renting a motel and hisrelatives lived within prohibited area, violation was notwillful).

(15) “A condition of probation that requires a person to dosomething beyond their control or ability is an illegalcondition and its violation is not a violation of probation.”In this case, the trial judge ordered the defendant to be inschool full time, get her GED, or participate in a specialeducation or training program. The probation officerchanged the condition to require that she get her GED. Onappeal, the court ruled that the condition imposed by the trialjudge was valid, but the modification by the probationofficer was not because the defendant “may not have theability to pass the GED examination, and she was notgiven possible alternatives.” In fact in this case, the evidenceshowed that the defendant’s “failure after two years of studyefforts, sandwiched between jobs, stemmed from herphysical/mental disabilities.” Thus, the violation on thosegrounds was improper. Rodriguez v. State, 768 So.2d 1234(Fla. 5th DCA 2000).

(16) As a condition of probation, the defendant was required towrite a letter of apology to an officer. His probation wassubsequently revoked based on several violations, includingfailure to write the letter. The sentence on his violation was

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prison time followed by another year of probation with thesame conditions, including the letter. There was never a timerequirement imposed as to when the letter was to bewritten. The defendant was subsequently charged with aviolation of the second term of probation on several grounds,including an arrest for a new charge of assault and failure towrite the letter. The defendant wrote the letter two days afterhis arrest on assault and about five days before the affidaviton the second violation was filed. The trial judge revoked hisprobation based solely on the failure to write the letter ofapology. Despite the fact that there was no evidence as toany instructions given by the probation officer to thedefendant concerning the letter and there was no timelimit for writing the letter, on appeal, the court held thatthe trial judge could properly find that the defendant'sfailure to write the letter for a period of one and one-halfyears after the condition was imposed, was a willfulviolation of the terms of probation. Thomas v. State, 542So.2d 475 (Fla. 1st DCA 1989).

(17) The defendant was required to submit to psycho/sexualevaluation and treatment as directed by his probation officer.He submitted to six sessions of such counseling before he wasterminated for unsatisfactory attendance. He was accused ofviolating probation. The evidence showed that he failed tofind an appropriate counseling program. The trial judge foundhim guilty of a violation. On appeal, the court reversedbecause there was no requirement of completion or a timelimit. Bingham v. State, 655 So.2d 1186 (Fla. 1st DCA1995).

(18) “After a hearing, the trial court found that defendant willfullyviolated her probation by absconding from Passageways andsentenced defendant to thirty years in prison. As the terms ofdefendant’s probation did not require that she completethe Passageways program, but only that she enter it, thetrial court erred in finding that defendant violated herprobation when she absconded from the program....Requiring that defendant complete the Passageways programconstitutes ‘an unauthorized and impermissible upwardmodification of [defendant's] probation conditions.’ Bellv. State, 643 So.2d 674, 675 (Fla. 1st DCA 1994).Accordingly, defendant’s probation and community control

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should not have been revoked.” Rial v. State, 835 So.2d 291(Fla. 3d DCA 2002).

(19) The trial judge found that the defendant had violated herprobation by failing to keep two appointments with herprobation officer. The evidence showed that she missed thefirst appointment because of car trouble and she called toschedule the second appointment. She missed the secondappointment because of a job appointment and triedunsuccessfully to reach her probation officer. On appeal, thecourt ruled that the State failed to prove willfulness.Rodriguez v. State, 768 So.2d 1234 (Fla. 5th DCA 2000).

(20) Trial court did not abuse its discretion in revoking probationfor failure to keep and appointment with the probation officer.This was a violation of condition 9. “After making severalunsuccessful attempts to contact her at her residence,Johnson’s probation officer told her to await his visit ona specific date, but she was not there for the appointment.Johnson testified that she was delivering newspapers for hermother, returning a vehicle, and taking her daughter to a carwash.” She said she was unaware of the appointment. Thetrial judge could reject her testimony. Johnson v. State, 880So.2d 749 (Fla. 5th DCA 2004).

(21) The court erred in finding a willful violation where thedefendant failed to report to his probation officer at theproper time, but returned the same afternoon after hisprobation officer called. The evidence supported theconclusion that the defendant may have been confused.“<When a probationer has made reasonable efforts tocomply with the terms of probation, his failure to do sowill not be held to be willful.’”Wilson v. State, 781 So.2d1185 (Fla. 5th DCA 2001).

(22) The state did not prove a willful and substantial violationbased on the defendant’s failure to report to his probationofficer, where the defendant was told to report upon hisrelease from custody, he was released prematurely by errorand said he was confused as to exactly when he wassupposed to report. His probation did not begin until hecompleted his sentence. Johnson v. State, 561 So.2d 1254(Fla. 2d DCA 1990). See also Faulkner v. State, 706 So.2d

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948 (Fla. 2d DCA 1998); Kolovrat v. State, 574 So.2d 294(Fla. 5th DCA 1991).

(23) Probation was revoked for failure to report. The defendantargued that the violation was not willful or substantialbecause the reporting requirement was not checked on thewritten form. On appeal, the court agreed. “At theprobation violation hearing, the State’s evidence consisted ofthe order of supervision given to the defendant at the pleahearing requiring him to report monthly, the trial judge’s oralpronouncement at the plea hearing that the defendant wasbeing placed on one year’s reporting probation, and thetestimony of the probation officer that she advised thedefendant of the requirement that the defendant report on amonthly basis in accordance with the checkmark that wasplaced on the order of supervision showing that the defendantwas being placed on probation for a period of one year.... Weagree with the defendant that the condition requiring Mr.Davis report to his probation officer no later than the fifth dayof each month was not checked on the order of supervision ofprobation as a requirement of his probation and thereforecannot serve as a basis upon which to revoke his probation....[O]ral pronouncement alone, generally, is not enough. Thedefendant must be placed on proper written notice of thisrequirement in order to satisfy due process. See Torres v.State, 712 So.2d 1169 (Fla. 2d DCA 1998). Due process issatisfied only if the conditions are included in the writtensentencing order.... The probation form given to the defendantat his plea hearing correctly included the condition, whichstates that ‘[n]ot later than the fifth day of each month [thedefendant] will make a full and truthful report to your[probation] officer on the form provided for that purpose.’The provision in the probation form is written such thatit requires a check mark next to it to be applicable.Without the check mark, it is not a written requirement.Because the order of supervision of probation in this caselacks a checkmark next to the requirement to reportmonthly to the probation officer, we find that it did notsatisfy due process requirements and cannot serve as thebasis for the revocation of probation.” Davis v. State, 36So.3d 152 (Fla. 3d DCA 2010).

(24) Where the defendant was accused of violating his probation

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by failing to file a truthful report and leaving the countywithout permission the defendant maintained that theviolations were not willful nor substantial. He claimed that hisassertion in his monthly report that he was employed at RadioShack was truthful and that his first probation officer knew heregularly traveled out of the area for work. The trial judgefound this testimony to be incredible. On appeal, the Courtheld that apparently the defendant's motive for lying was toprevent his probation officer from learning that he hadconfessed to theft. The evidence was sufficient to satisfy theconscience of the court. Edwards v. State, 561 So.2d 1354(Fla. 4th DCA 1990).

(25) The defendant was told not to be present with a person underthe age of eighteen years without adult supervision. He cameto visit his probation officer with his niece, who wasunderage. The probation officer testified that she hadexplained that condition to the defendant. The trial judgefound that the defendant had willfully violated his probation.On appeal, the Court reversed based on these factors: (1) therewas undisputed evidence that the defendant's niece was awareof his arrest and the charges against him; (2) the defendanttestified that it did not occur to him that there would be aproblem with taking her to the probation officer and thenhome; (3) the niece testified that she decided to go with thedefendant to his probation office so that he could drop her offafterwards; (4) the niece testified that because the defendant'swife was working two jobs and had to leave for workimmediately, it was impossible for her to providetransportation to the niece; (5) when the probation officer toldthe defendant he was in violation of his probation, he statedthat he did not realize he was in violation until theprobation officer brought it to his attention; (6) both thewife and the niece testified that it had not occurred to themthat this would be a violation of probation; (7) the defendanthad been very good in checking on the terms of his probationwhen he had a question and in complying. On appeal, thecourt held that under these circumstances the violationcould not be considered willful or substantial. The courtstressed the point that negligence or a mistake or evengross negligence is not sufficient to find a violation. Thisopinion contains an excellent discussion of the law on thissubject. Steiner v. State, 604 So.2d 1265 (Fla. 4th DCA

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1992).

(26) In contrast to the situation in Steiner, the court found thatthe trial court did not abuse its discretion in revokingprobation for having contact with the victim. Thecircumstances support the court’s finding that this was anintentional violation and not a mistake. See the opinion forthe details and analysis. Davis v. State, 796 So.2d 1222 (Fla.4th DCA 2001).

(27) It was error to find that the defendant willfully violatedcommunity control for failing to report where the evidenceshowed that: (1) the community control officer told thedefendant to report to her in Tampa on January 23, 1991; (2)the defendant reported to the Marion County office onJanuary 24, 1991; (3) the defendant testified that he spoke tothe judge and community control officer and had gotten theimpression that his case would be transferred to MarionCounty; (4) he reported to the Tampa officer on February 5,1991 when it became clear to him that he had reported to thewrong place. The Court said: “The appellant made areasonable attempt to comply with the condition ofcommunity control. His failure to report was more theresult of confusion or miscommunication than a deliberateact of misconduct. He believed he had the approval of thejudge and the community control officer to report inMarion County. Thus, his violation of community controlwas not intentional.” Love v. State, 606 So.2d 755 (Fla. 2dDCA 1992).

(28) The defendant was ordered to perform fifty hours ofcommunity service, but he was not told that a minimumnumber of hours was required each month nor was he advisedas to the particular community service he was to perform.Seven months remained on his probation when a violation forfailure to do the community service was filed. On appeal, thecourt ruled that the failure to perform the service “did notrise to the level of willfulness that would warrantrevocation of his probation.” Green v. State, 620 So.2d1126 (Fla. 1st DCA 1993).

(29) The court ordered the defendant to complete 100 hours ofcommunity service. “Subsequently, the trial court modified

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Ballien’s orders of probation in both cases and converted thecosts and fines associated with both cases to communityservice hours.” She was accused of violating probation by notperforming community service. The defendant moved todismiss because she believed she had until the end of the termto comply. “The State argued that, because Ballien’s cost ofsupervision was due every month, she could be violated fornot performing community service hours each month.... TheState bears the burden of proving a willful and substantialviolation of probation by competent evidence. (Citationomitted) Here, the trial court’s probation order never setforth how many community service hours Ballien wasrequired to complete monthly in lieu of paying hermonthly costs. Nor did the State present testimony fromBallien’s probation officer that he had instructed her as tohow many hours of community service she was requiredto complete each month. Therefore, the State failed tomeet its burden of proving that Ballien willfully andsubstantially violated her probation.” Ballien v. State, 942So.2d 981 (Fla. 5th DCA 2006).

(30) The defendant was find guilty of violating probation byfailing to perform 150 community service hours at the rate offive hours per month. The State conceded error. “There wasno starting or ending date specified in the probation order aswell as no evidence of Dean’s refusal to perform. See Pollardv. State, 930 So.2d 854, 855 (Fla. 2d DCA 2006) (citingShipman v. State, 903 So.2d 386, 387 (Fla. 2d DCA 2005))(“‘[T]he State cannot prove a willful and substantialviolation of a condition to complete community servicehours, even when the order contains a per-month rate ofcompletion, when the order does not contain a beginningand ending date for completing the hours and when thereis sufficient time remaining for the probationer tocomplete the required hours at the required rate.’”). Deanv. State, 948 So.2d 1042 (Fla. 2d DCA 2007).

(31) “‘In the future, trial judges imposing a per-month hourrequirement for community service might announce thecondition more clearly by specifying a beginning andending date for completing the hours.’ Bowser v. State, 937So.2d 1270, 1273 (Fla. 2d DCA 2006). Otherwise, ‘theState is limited in its ability to prove a willful and

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substantial violation....’ Id. Further, ‘it may be wise toupdate the probation forms....’ Id.” Dean v. State, 948So.2d 1042 (Fla. 2d DCA 2007).

(32) “Mr. Matthews’ [argued] that the court erred when it revokedhis probation on the ground that he failed to performcommunity service hours as ordered. We agree. Thedeficiency in the order revoking Mr. Matthews’ probationon the basis of his failure to perform community servicehours derives from his original probation order’somission of defined times for his commencement andcompletion of the condition. This court has consistently heldthat such a violation will not be deemed willful andsubstantial if the performance parameters have not beenspelled out and sufficient time remains in the probationaryperiod for the probationer to complete the requirement.”Matthews v. State, 943 So.2d 984 (Fla. 2d DCA 2006).

(33) The defendant was ordered to perform community servicehours, but there was no schedule or time frame. He had ninemonths remaining; therefore, it was improper to revokehis probation for failure to perform the communityservice. Francois v. State, 923 So.2d 1219 (Fla. 3d DCA2006). See also Roundtree v. State, 955 So.2d 1184 (Fla. 3dDCA 2007)(applied some principle to requirement that thedefendant undergo psychological evaluation and completedomestic intervention program).

(34) The defendant was ordered to complete 100 hours ofcommunity service at the rate of five hours per month duringthe term of community control. The probation officer testifiedthat the defendant had failed to complete any hours inSeptember or October, but the probation officer admitted thatthe defendant had already completed 75 hours and hadonly 25 hours left to complete during the remaining 22months of his community control. The trial judge found thatthe defendant violated this condition. On appeal, the courtreversed. “[The defendant] had more than sufficient timeto complete [the remaining hours] during his communitycontrol period. The State presented no evidence that [thedefendant] had refused to complete the remaining hoursor was actively avoiding this requirement. Thus, the Statefailed to prove a willful and substantial violation of

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condition 27.” Pollard v. State, 930 So.2d 854 (Fla. 2d DCA2006). See also Shipman v. State, 903 So.2d 386 (Fla. 2dDCA 2005).

(35) The defendant was found in violation of a condition requiringthat he perform 50 hours of community service, but no datefor completion was specific. The court reversed. “Assumingthat Bryant had, in fact, already completed thirty of hisfifty community service hours, he had more thansufficient time to complete the remaining twenty hoursduring the eight months left in his probationary period.Thus, the State failed to prove a willful and substantialviolation of this condition.” Bryant v. State, 931 So.2d 251(Fla. 2d DCA 2006).

(36) The defendant was ordered to perform 100 community servicehours at the rate of five hours per month. The trial judgefound a violation of probation for failing to complete thisrequirement. On appeal, the court reversed. “The trial court’sprobation order did not specify a beginning or end date forBowser to complete his community service hours.... On April27, 2005, Bowser submitted proof that he completed fivehours. He did not provide proof of completion of any othercommunity service. However, at the time his probation wasrevoked, Bowser had over two years remaining on his termduring which he could have completed 100 hours ofcommunity service at the rate of five hours per month. Morethan adequate time remained for Bowser to complete hisobligation by performing community service at the rate of fivehours per month for the requisite number of months.... In thefuture, trial judges imposing a per-month hourrequirement for community service might announce thecondition more clearly by specifying a beginning andending date for completing the hours. Without abeginning and ending date for completion, the State islimited in its ability to prove a willful and substantialviolation of probation-it can seek to establish a violationof condition 27 only when there is insufficient timeremaining for the probationer to complete the requiredhours at the required rate.” Bowser v. State, 937 So.2d1270 (Fla. 2d DCA 2006).

(37) Failure to submit documentation of community service

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hours does not constitute a violation of a conditionrequiring only that the defendant perform communityservice. Bryant v. State, 931 So.2d 251 (Fla. 2d DCA 2006).

(38) Defendant was ordered to do five hours of community serviceper month. When he was violated, he was fifteen hours inarrears. The defendant had health reasons for not being ableto perform manual labor and for not doing some of the hours.But the trial judge was justified in finding a willful andsubstantial violation because the defendant had notcompleted any community service and had not asked hisprobation officer for community service that would notrequire manual labor. Davis v. State, 862 So.2d 931 (Fla.2d DCA 2004).

(39) The defendant did not willfully violate the requirement that hebegin community service hours within thirty days where hetestified that he was told by a man at the work site that heshould keep checking in until appropriate work becameavailable and the probation officer merely testified thatshe kept reminding the defendant of his obligations.White v. State, 619 So.2d 429 (Fla. 1st DCA 1993).

(40) “Finally, the State charged appellant with violating probationby failing to perform five hours of community service workper month. The probation order did not specify a deadline forcompleting the required 100 hours and instead requiredtwenty months of work at five hours per month. At the timeof the purported violation, Marzendorfer had slightly less thanfifty-five months left to complete the community service. Thiscourt and other district courts of appeal have been clear thatwhen a probation order does not specify a beginning orending date for the completion of a particular condition, theprobationer cannot be charged with violating probation untilthe remaining period of probation is too short to perform therequired condition.... When a sentencing judge intends for aprobationer to work in community service at a continuous rateeach month at the start of probation, the order must so state.See Bowser, 937 So.2d at 1273. On its face, the probationorder here does not require Marzendorfer to begin workimmediately; he has ample time on probation in which tocomplete the required 100 hours at the prescribed monthlyrate. The State could not, therefore, prove a willful and

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substantial violation of the community-service condition ofprobation.” Marzendorfer v. State, 976 So.2d 596 (Fla. 1stDCA 2007).

(41) The defendant missed a meeting he was required to attend asa condition of probation he had previously been firmlyadmonished that he had to attend and even minor deviationswould not be tolerated. At the hearing the unrebuttedtestimony was that the defendant had engaged in an inept andnegligent course of conduct that resulted in him missing themeeting, but there was no evidence that his absence waswillful. The court found him in violation of probation. Onappeal, the court reversed because the evidence did notestablish a willful violation. Stevens v. State, 599 So.2d 254(Fla. 3d DCA 1992).

(42) The court revoked the defendant’s community controlbecause he was not at his residence. On appeal, the courtreversed. “The state failed to contradict appellant’s testimonythat his schedule required him to be home at 8:00 thatmorning and that he could not be home at that time becauseof a problem at work. The state also failed to rebut appellant’sclaim that he paged his community control officer, as she hadasked him to do in the past, when he feared that he might belate and she did not respond. The defendant had also been amodel probationer....We conclude, as the court did inStevens, that ‘[h]owever inept and negligent [appellant’s]conduct, the record does not support the conclusion that[appellant] willfully or deliberately [violated hiscommunity control].’” Riddle v. State, 755 So.2d 771 (Fla.4th DCA 2000).

(43) The court revoked the defendant’s community controlbecause he was not present at his residence. The defendant’sunrebutted explanation was that he had car trouble. There wasalso evidence that supported this contention. The State arguedthat the defendant should have kept 35 cents with him tomake a phone call or he should have called his aunt collect sothat the aunt could call the community control officer. Onappeal, the court reversed. The court ruled that thedefendant’s conduct was inept or negligent, but that is notsufficient to establish a violation of probation. McCray v.State, 754 So.2d 776 (Fla. 3d DCA 2000).

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(44) The trial judge revoked defendant’s community control forbeing away from his residence. On appeal, the court reversed.It was “violated (1) for being briefly absent from his residenceto retrieve a birthday present from his parked car for his son,and (2) for being only a short distance away buyingcigarettes.... The greater weight of the evidence did not showthat the two acts should have been considered as a willful andsubstantial violation of the community control. (citationsomitted) Inept or negligent conduct is insufficient todemonstrate willfulness.” Cranz v. State, 854 So.2d 843(Fla. 3d DCA 2003).

(45) The defendant was accused of violating his probation bydriving without a valid license and with an expired tag. Theevidence was insufficient to show that the violations werewillful. Upshaw v. State, 599 So.2d 687 (Fla. 2d DCA1992).

(46) The defendant was on community control and was accused ofviolating it by not being at his residence. The only admissibleevidence was his own testimony, which was that he wasordered to leave by the manager of the facility and he felt thathe had no choice. “Since that evidence does not establish awillful violation of the conditions of community control,vacation of the revocation order is proper.” Morse v.State, 604 So.2d 496 (Fla. 1st DCA 1992).

(47) The defendant was ordered not to have contact with a childunder 16 years of age without a responsible adult. Thedefendant had contact with such a child in the presence of thechild's mother. The state argued that this was a violationbecause HRS had initiated action against her and she wastherefore not responsible. The HRS investigation was closedwithout adverse results. On appeal, the court found that theevidence was insufficient for a violation. Astore v. State, 618So.2d 790 (Fla. 2d DCA 1993).

(48) It was a condition of the defendant’s community control thatthe defendant be in his home except while participating incertain named activities and one half hour before and aftereach such activity. He was accused of violating this conditionand the evidence consisted solely of testimony from his

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community control officer that proved he was not at homewhen the officer visited. He was found guilty. On appeal,the court reversed because the state presented no evidenceto show that the defendant was not involved at the time inone of the approved activities. Thus, the state failed toprove a willful and substantial violation. Jackson v. State,622 So.2d 1027 (Fla. 4th DCA 1993).

(49) In another case, the court distinguished Jackson andconcluded that the evidence was sufficient. Benitez v.State, 744 So.2d 1088 (Fla. 4th DCA 1999).

(50) The defendant was accused of violating his probation byfailing to report. At the hearing the defendant acknowledgedthat he knew that he was on probation, but thought that hisprobation had been transferred to Louisiana. He did not reportto any probation officer. He explained that he was shot a fewdays after his release from prison and hospitalized. The trialjudge found the defendant guilty of the violation. On appealthe Court affirmed. “Although the failure to report couldnot be characterized as willful during the early period ofappellant’s treatment for gunshot wounds, the samecannot be said for his failure to contact the probationofficer during the later stages of his recovery andconvalescence. Indeed, the record reflects that appellantsubsequently became sufficiently ambulatory to bearrested. Given his knowledge that he was on probation,and his acknowledged awareness of his duty as aprobationer to report within thirty days of his releasefrom jail, the trial court’s determination that his failure todo so amounted to willfulness by the greater weight of theevidence is affirmable.” Burgin v. State, 623 So.2d 575(Fla. 1st DCA 1993).

(51) The defendant misrepresented the equity in acondominium before an order was entered directing thatthe condo be transferred to the victim as equity. She hadmade every effort to comply and offered to pay cash to thevictim to make up the deficiency in equity. The victimrefused. This was not a willful violation of probation. Themisrepresentation may have been the basis for some othercriminal charge, but not a violation of probation. Thorpe v.State, 642 So.2d 629 (Fla. 1st DCA 1994).

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(52) The defendant was prohibited only from having contact withthe child-victim. But his counselor recommended that hemove out of the place where there were other children. Hetemporarily moved to a friend’s apartment and she moved outwith her children. The defendant told his P.O. where he wasliving, but that the apartment belonged to a boyfriend of thewoman who had moved out. The trial judge revoked hisprobation based on the defendant’s failure to be truthful withhis probation officer. On appeal, the court reversed. “Thecourt’s revocation was an unduly harsh result consideringBenedict’s sincere attempts to comply with the terms ofhis probation. When a probationer has made reasonableefforts to comply with the terms of probation, his failureto do so will not be held to be willful.” Benedict v. State,774 So.2d 940 (Fla. 2d DCA 2001)

(53) The defendant was accused of violating his probation byfailing to provide a verifiable residence to his PO. This wasalleged to violate the standard condition that one not changehis or her residence without prior consent of the PO. Thedefendant was also accused of violating his probation inthat his PO told him to contact a PO in Lake Cityimmediately, and the defendant had failed to contact thatofficer and his whereabouts were unknown. This wasalleged to be in violation of the standard condition that heanswer all questions put to him by his probation officertruthfully and follow his or her instructions. The defendanttestified to these facts: (1) he lost his apartment and job whenhe was jailed on an earlier violation of probation, whichresulted in the extension in the term of probation which wasthe subject of this violation; (2) before he left the courtroomon the date of the extension his ROR officer in Lake City toldhim to report to his “regular probation officer;” (3) he thoughtthat met the PO in Pinellas County who had supervised himwhen he was originally sentenced; (4) he contacted thePinellas County probation officer immediately upon hisarrival in Pinellas County, which was two weeks after theextension; (5) he informed the Pinellas County PO where hewas living as soon as he got a place to live, but by then anaffidavit of violation had been filed on the extended term ofprobation; (6) the Pinellas PO did tell him to contact the LakeCity PO after he got back to Pinellas; (7) he did not comply

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because he did not have a telephone, collect calls wererefused by the Lake City probation office, and he had nomoney for long distance calls; (8) he made several collectcalls to a friend in Lake City in an effort to contact the LakeCity PO. The defendant's testimony was unrebutted in allmaterial respects. The Lake City PO testified that, although henever had direct contact with the defendant, he received callsfrom the Pinellas PO reporting that the defendant was in St.Petersburg and had contacted her. The Lake City PO alsostated that the defendant's friend had tried to reach him at thePO, but by the time they actually connected the affidavit hadalready been filed and the arrest warrant issued. The PinellasPO confirmed much of what the defendant had said about theproblems with contacting the Lake City PO. The Pinellas POsaid that when she asked the defendant for a home address heinitially did not have one, but he was working and stayingwith friends. The defendant did come to her office within 30days and give her an address. She testified that she did notwithhold consent for any change of residence. The defendantwas found guilty of violating his probation. On appeal, theconviction was reversed because the evidence was insufficientto prove a willful and substantial violation. “To establish aviolation of probation, the prosecution must prove by apreponderance of the evidence that a probationer willfullyviolated a substantial condition of probation.” Where thedefendant makes reasonable efforts to comply, he cannot befound to be in willful violation of probation. This opinion isexcellent because it provides a summary of cases wherethe courts have ruled that the evidence of a willful andsubstantial violation was insufficient. Van Wagner v.State, 677 So.2d 314 (Fla. 1st DCA 1996).

(54) The defendant was placed on probation for sexual battery. Hisconditions included the requirement that he have no contactwith minor children, and that he get the writtenpermission of his counselor to live with minor children orto become involved with a woman who had minorchildren. The defendant met a woman. He told her about hisstatus and she began seeing the defendant's counselor withhim because they wanted to get married. They began livingtogether in July 1994 and were joined by the woman's minorchildren in December, 1994. The counselor was aware ofthese arrangements. This was not concealed from the

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probation officer. At no time did the counselor direct that thedefendant cease this relationship. It was not until January1995, when the probation officer became aware of thesituation, did the defendant learn of any official disapprovalof the relationship. Even then he was not told to terminate therelationship, but only that he would have to return to court inMarch 1995. He was found to have violated his probationbecause he did not have the written permission of his counselto become involved with the woman and live with thechildren. His probation was revoked and he was sentenced to25 years in prison. Under these circumstances the courtfound that the violation was not willful or substantial.Benavides v. State, 679 So.2d 1195 (Fla. 3d DCA 1996).

(55) The defendant “was sentenced to probation and specificallyordered to have no contact with Carolyn Riggins. Less thanone month after sentencing, Mr. Riggins was seen outside thehome of Carolyn Riggins. On the same day, Mr. Riggins alsoplaced a telephone call to Ms. Riggins' home. The trial courtfound that Mr. Riggins materially, substantially, andwillfully violated the terms of his probation and therebyrevoked his probation .... We agree with the findings of thetrial court and affirm the revocation of probation.” Riggins v.State, 830 So.2d 920 (Fla. 4th DCA 2002).

(56) The defendant was accused of violating his probation by notsubmitting to alcohol evaluation and treatment. The defendantargued that there was still time for him to comply. Onappeal, the court affirmed the violation because there wasnothing in the record indicating a willingness to comply.Monroe v. State, 679 So.2d 50 (Fla. 1st DCA 1996).

(57) The defendant was accused of violating his probation by notcompleting a six-month residential treatment program. Hewas dismissed from the program, but the evidence showedthat the dismissal resulted at best from negligent conduct onthe defendant's part. “‘When a defendant’s probation issought to be revoked because of his failure to successfullycomplete a designated rehabilitation program, someevidence must be submitted to show that the defendantwas in some manner responsible for such failure.[citations omitted] If a probationer makes reasonableefforts to comply, his failure will not be considered willful.

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[citations omitted]. The defendant was properly away fromthe center, but had a flat tire, which prevented him fromarriving at the center on time. The next day he left the centerwithout permission to retrieve the car because he was told thevehicle would be towed. There was no rule against leavingwithout permission, but it was an “‘unwritten rule.’” “[W]hiledefendant's attempts to comply may have been inept ornegligent, there is no evidence to support a conclusion thatdefendant’s failure to return” to the center was willful.Thomas v. State, 672 So.2d 587 (Fla. 4th DCA 1996).

(58) The state must prove by a preponderance of the evidencethat the defendant willfully violated a substantial conditionof probation. If the defendant makes “reasonable efforts tocomply with the terms of probation” he has not willfullyviolated the conditions of probation. This opinion containsseveral examples of where the defendant’s act or failure to actwas found not to be willful. In this case, the court ruled thatthe trial court abused its discretion by finding the defendantguilty of a violation because the evidence established that “hemade repeated, although unsuccessful, attempts toestablish communication with Mr. Roberts [a probationofficer he had been directed to contact] prior to the filingof the affidavit of violation of probation. While for a timehe had no fixed abode and no address to give, he did notwithhold information he had from Mrs. Glesenkamp [hisprobation officer]. Nor was it shown that he made anychange of residence without her consent. Appellant’spenury, homelessness, and unemployment were notintentional, as far as the record shows.” Van Wagner v.State, 677 So.2d 314 (Fla. 1st DCA 1996).

(59) Defendant “contends that the evidence was insufficient tosupport a finding that he violated the conditions of hisprobation and, thus, the order of revocation must be reversed.We agree.... The defendant was accused of violating hisprobation by changing his residence without approval of hisprobation officer. This was based on the fact that thedefendant changed room numbers in a hotel. The trial judgefound the defendant guilty. The court found that this waserror. In order to support a revocation of probation, thealleged violation must be both willful and substantial.(Citation omitted) .... In this case, there was no evidence,

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circumstantial or otherwise, that appellant was aware thatchanging rooms within the hotel triggered his obligationsregarding a change of address and, thus, no evidence of a‘willful’ violation.” Martoral v. State, 946 So.2d 1240 (Fla.4th DCA 2007).

(60) The trial court erred in finding a willful violation on thegrounds that the defendant changed her residence without theconsent of the probation officer because she was gone fromher residence from August 11 to August 15. “She washospitalized, then at her mother’s house for only a shortperiod of time, and the probation officer stated that on the15th she was again residing at her original residence.”Johnson v. State, 668 So.2d 240 (Fla. 1st DCA 1996).

(61) It was a condition of probation that the defendant not havecontact with a child under the age of sixteen. The nighttimecaretaker of the defendant’s children dropped them off at thedefendant’s trailer unexpectedly, in the middle of the night.The defendant’s fiancee was there as well. Previously, thedefendant had been allowed to have contact with his childrenif it were supervised by an adult, like the defendant’s fiancee.Although the defendant did not know it, that provision hadbeen changed. The probation officer filed a violation ofprobation based on contact with the children. The trial judgefound the defendant guilty. The court reversed because theevidence failed to show a willful and substantial violation.Any ambiguity in a condition will affect the state’s abilityto proof a willful violation. Wagland v. State, 705 So.2d1016 (Fla. 2d DCA 1998).

(62) The defendant was arrested in March of 1996 for violation ofprobation by committing a new crime. He was also violatedfor failure to file monthly reports from April of 1996 throughDecember of 1996. The defendant testified that, based inpart on information he had been provided by a probationofficial, he believed that his probation had beenautomatically revoked when he was arrested so that he nolonger had to report. On appeal, the court found that underthese circumstances the failure to report could not be found tobe a willful violation. The state elected not to proceed on thedomestic violation and the record was silent as to whetherthe defendant had been advised of the terms and

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conditions of his probation. Smith v. State, 711 So.2d 100(Fla. 1st DCA 1998).

(63) The defendant’s failure to report was not willful becausethrough a technical error the defendant was told threetimes that he was not on probation. He was sentenced toprison followed by probation, but as a result of an error, thesentence was recorded as concurrent. James v. State, 98So.3d 618 (Fla. 2d DCA 2012).

(64) “[A]ppellant’s failure to respond to a single telephone callplaced at a time when appellant was away from hisresidence for a reason which was beyond his control and toa single letter which the state did not establish the appellantactually received, does not constitute a willful violation of therequirement that appellant make himself available to hisprobation officer.” Smith v. State, 711 So.2d 100 (Fla. 1stDCA 1998).

(65) The defendant was on community control. He was supposedto be at work or at home. The defendant was riding in theback of a truck with his work crew on the way home. Thedriver decided to stop at a store. The rest of the crew went inand the defendant went with them. He bought sneakers. It wasraining and the back of the truck was open. The trial judgefound that he violated his community control. On appeal, thecourt ruled that the alleged violation was neither willfulor substantial. Zelaya v. State, 713 So.2d 1079 (Fla. 4thDCA 1998).

(66) The defendant was accused of violating his probation bymoving back to Florida from Alabama without permission.The trial judge found him guilty. On appeal, the courtreversed because there was insufficient evidence that this wasa willful and substantial violation. “[T]he combination ofthe confusion as to whether Florida or Alabama hadauthority to approve the move back to Florida,defendant’s attempt to obtain approval both fromAlabama and Florida prior to his move from Alabamaand the subsequent ratification of the move by Mr.Gainer’s supervisor” lead to the conclusion that the trialjudge erred. Carter v. State, 659 So.2d 453 (Fla. 4th DCA1995).

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(67) It was a condition of probation that the defendant allow theprobation officer to visit his residence. A probation officer,who was not the defendant’s regular probation officer, soughtto visit the defendant’s residence. The defendant would notallow that officer to visit because the defendant thought therequirement only applied to his regular probation officer. Thecourt found that the defendant had violated his probation. Onappeal, the court reversed. “[W]here there is confusion overa duty established by a condition of probation, anyviolation is not willful.” Burse v. State, 724 So.2d 596 (Fla.2d DCA 1998).

(68) The defendant argued that, since he was an alcoholic, hecould not resist alcohol. Thus, his violation of alcoholrelated conditions was not willful. The court rejected thiscontention. Spry v. State, 750 So.2d 123 (Fla. 2d DCA2000).

(69) The trial judge found the defendant guilty of willfullyviolating his probation by not reporting to his probationofficer. The defendant argued that the evidence wasinsufficient. The court disagreed. In this case, “the statepresented the probation officer’s testimony that he haddirected appellant to call him, appellant had indicatedthat he understood the instruction, and appellantthereafter failed to do so.” The defendant denied his abilityto understand the instructions. The trial judge believed theprobation officer’s testimony. There was no abuse ofdiscretion. Hernandez v. State, 723 So.2d 886 (Fla. 4th DCA1998).

(70) “The failure to submit to urine screens is ... a valid basisfor revocation. (citation omitted) However, illness canrender technical violations of probation not ‘substantialand willful.’ (citation omitted) Either a mental or aphysical illness can be debilitating to the point that aprobationer cannot comply with the terms of hisprobation.” In this case a psychiatrist testified that during thetime that the defendant was supposed to be performing hisconditions of probation he suffered from such a severedepression that he was crippled by it. “He was immobilizedby the depression and did not have the will to make

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decisions; therefore, he did not willfully fail to complywith the reporting conditions of his probation.” Thisdefendant had successfully completed two years ofcommunity control and probation, including a substanceabuse program. Williams v. State, 728 So.2d 287 (Fla. 2dDCA 1999).

(71) If the defendant fails to comply with a condition ofprobation because of a mental disorder, the violation isnot willful. In this case, however, the evidence was sufficientto establish a willful violation. “First, Palma made thedecision to cease taking her medication. Second, Palma hashad a history of violating her probation. Third, while Riveratestified that persons with mental disorders have a problemwith following the rules, Palma had previously successfullycompleted the Phoenix Program, which was also a drugtreatment program. Additionally, Rivera conceded that she isnot a specialist in psychiatric disorders, but was a specialist inaddictions.” Palma v. State, 830 So.2d 201 (Fla. 5th DCA2002).

(72) The defendant failed to perform requirements of hisprobation. The trial judge revoked his probation. On appeal,the court reversed. “[T]he uncontroverted evidence at theVOP hearing showed that the appellant suffered fromsever delusions produced by his paranoid schizophreniaand that the illness caused him to violate his probation.”The fact that experts testified that he was competent toproceed did not suggest a different result because the test isdifferent. Unlike the situation in Palma v. State, 830 So.2d201 (Fla. 5th DCA 2002), there was evidence that thedefendant stopped taking his medication because hiscounselor concurred in that decision, and the failure to takethe medication in Palma was just one reason the court foundthat the violation was willful. Copeland v. State, 864 So.2d1197 (Fla. 1st DCA 2004).

(73) Defendant was denied effect assistance of counsel on aviolation of probation where his lawyer failed to presentevidence that he was mental ill and, therefore, his conductwas not willful. “Medrano offered the testimony of apsychologist and a licensed mental health counselor at thesecond hearing (where only mitigation of the sentence was

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considered) that suggested that he was ‘obsessive’ about hisformer wife. We conclude that such testimony should havebeen presented at the initial probation hearing as adefense to the willfulness of the underlying violation,rather than merely as a mitigating factor at the sentencingphase. ... Marcano v. State, 814 So.2d 1174, 1175 (Fla. 4thDCA 2002) (reversing a violation of probation because theviolation was the result of mental illness); Robinson v. State,744 So.2d 1188 (Fla. 2d DCA 1999) (‘mental illness canrender violations of probation not willful and substantial’);Williams v. State, 728 So.2d 287, 288 (Fla. 2d DCA 1999)(‘Either a mental or a physical illness can be debilitating tothe point that a probationer cannot comply with the terms ofhis probation.’).” Medrano v. State, 892 So.2d 508 (Fla. 3dDCA 2004).

(74) The defendant was accused of violating probation by notpaying restitution. She claimed that the violation was notwillful because she was mentally ill. She had been examinedby experts and found incompetent to go to trial for a period oftime. The court affirmed revocation of probation. “Althougha ‘mental illness can render a violation of probation notwillful and substantial,’ see Robinson v. State, 744 So.2d1188, 1189 (Fla. 2d DCA 1999), an evaluation for‘competency to proceed to a hearing and the willfulnature of a violation are not necessarily the samedetermination,’ see Copeland v. State, 864 So.2d 1197, 1200(Fla. 1st DCA 2004). That is so in this case. Because thedefense failed to offer any expert testimony that Ms.Chandler’s mental condition was such that her violation wasnot willful and substantial, the trial court did not abuse itsdiscretion in concluding Ms. Chandler willfully refused tomake the restitution payments, and revoking her probation.”Chandler v. State, 41 So.3d 1107 (Fla. 3d DCA 2010).

(75) The evidence supported the conclusion that the defendant’smental illness prevented him from completing counselingtherefore, the trial court erred in finding that he willfullyviolated his probation. “Based upon the evidence presented,the trial court abused its discretion in concluding thatappellant’s absences from the program constituted a willfuland substantial violation of the probation condition requiringhim to follow any recommended statement. His counselor

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testified at length about appellant’s struggles with anxietyand his fear of people. She even had him hospitalized for hiscondition. Appellant repeatedly asked for help and to be putin a long-term treatment program, but his counselor wasunable to find a suitable program for him. While there was noexpert opinion as to appellant's mental state, that was a resultof the trial court’s erroneous refusal to permit testimony onthe issue, as it would go to the willfulness of the violation.Nevertheless, even without such expert testimony, theadmitted evidence shows that appellant desired to attendthe program and complete his treatment, but his mentalillness prevented him from doing so.” Marcano v. State,814 So.2d 1174 (Fla. 4th DCA 2002). See also Meade v.State, 799 So.2d 430 (Fla. 1st DCA 2001).

(76) The defendant’s probation was converted to administrative ormail-in probation. About 10 months before his probation wasto terminate he stopped reporting and changed his residence.The court revoked his probation. The court reversed becausethe violation was not wilful. The defendant only had a fifthgrade education and had suffered a head injury causing him tospend a year in the hospital and three years in a mentalhospital before he was placed on probation. The defendantbelieved that these hindered his capacity to understand. Whenhis “probation was converted to an administrative or mail-inprobation, he explained to the secretary at the probation officethat he needed enough forms to get him through his probationperiod. She looked up his record and gave him what hethought was the correct number of forms to mail in for theremainder of his sentence. He diligently mailed in the formsuntil he had no more and then assumed that he was finishedwith probation. He left the state for eight and a half years,only returning when he discovered that there was a warrantout for his arrest. Illness, including mental illness, canrender a technical violation of probation ‘not substantialor willful because a mental or physical illness can bedebilitating to the point that a probationer cannot complywith the terms of probation.’ Meade v. State, 799 So.2d430, 432 (Fla. 1st DCA 2001).... Parker, having a fifth-gradeeducation and mental ailments, explained that he believed hehad complied with the terms of his probation and that he wasfree to leave the state. He testified that he received noexplanation when his probation was converted to

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administrative probation, other than that he had to mail inmonthly reports. He no longer had to visit the probationoffice, so he had little contact with his probation officer.When his forms were gone, he believed that his probation hadbeen completed.... [T]he State presented no evidence torebut Parker’s testimony. Parker’s probation officertestified that he knew Parker had little education and that hehad suffered serious head trauma. He conceded that he did notknow that Parker had been declared incompetent to proceedat one point. He admitted that even though he knew Parker’sbackground, he did not take special care to insure that Parkerunderstood the terms of his probation. He also admitted thathe never told Parker when his probation terminated. Hestated, ‘I just make an assumption that the person knowswhen his probation is going to terminate. I don't normallytell the person, be advised that your probation is going toterminate on this date.’ This testimony was insufficient toprove that Parker willfully violated his probation byabsconding. The trial court determined that Parker was ableto understand how to file monthly reports and at one point hadrequested early termination of his probation. The courtassumed that ‘[t]here would had to have been a findingthat he was competent at the time that he made [the pleaagreement] and he had advice of counsel as evidenced bythe fact that at least as late as late ‘96 he was in courtmaking motions through his attorney.’ We conclude thatthe trial court erred in assuming that Parker wascompetent and that he knew when his probationterminated. The State presented no evidence on which tobase those assumptions.” Parker v. State, 980 So.2d 1223(Fla. 2d DCA 2008).

(77) On the other hand, where the evidence failed to link the

mental illness “to his failure to return to the Foundationsprogram and to comply with his reporting requirements,” thetrial judge did not err in finding a violation of probation.Linday v. State, 839 So.2d 829 (Fla. 4th DCA 2003).

(78) “[T]he trial court erred in not allowing the defense toproffer evidence regarding appellant’s competence inunderstanding the instructions given her that werenecessary for her compliance with the special condition ofprobation.... ‘It is a well established principle of law in

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this state that an otherwise qualified witness who is not amedical expert can testify about a person’s mentalcondition, provided the testimony is based on personalknowledge or observation.’” Rivers v. State, 458 So.2d 762,765 (Fla.1984). Moreover, ‘witnesses who have known andobserved a defendant over an extended period of time mayalso be competent to testify as to their nonexpert opinion onthe defendant’s sanity.’ Garron v. State, 528 So.2d 353, 357,n. 3 (Fla.1988).” Winbush v. State, 937 So.2d 768 (Fla. 1stDCA 2006).

(79) The defendant was on community control and was required towear an electronic monitor. That monitor was removed by herboyfriend while he was beating her up. Initially, the defendanttold her community control officer that she had accidentallycut the device off while using a shovel. About a week afterthe beating she went to the community control office. Whenconfronted by her community control officer, she told thetruth. Her community control officer did not testify at thehearing. The trial court found the defendant guilty basedsolely on the fact that the defendant lied to her communitycontrol officer. On appeal, the court reversed. “Given thenature of the beating she had received and hercircumstances at the time, the record does not establish bythe preponderance of the evidence that Ms. Kelly willfullydelayed an honest answer to the community controlofficer beyond a period that should be fairly described as‘prompt’ in this case. Without conflicting testimony fromthe community control officer, the State did not prove thisviolation.” Kelly v. State, 729 So.2d 1007 (Fla. 2d DCA1999).

(80) The defendant was required to obtain consent of her probationofficer before moving. She was accused of violating thiscondition. The trial judge found her guilty. On appeal, thecourt reversed. The defendant’s unrebutted testimony was thatshe was given three days to leave her apartment due to a leakin the bathroom from another apartment. She said that shefirst slept in her car because she did not want to violate herprobation. She was arrested for battery, but she was found notguilty. The defendant said that on the day of her arrest shetried to call her probation officer and left a message with theofficer of the day. Once she was in jail for the battery, the

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defendant contacted her probation officer to let her know thatshe had been arrested and of her change in address. The courtsaid, “Where a probationer has made reasonable effortsto comply with the terms of probation, his or her failureto do so has been held not to be willful.... In Garcia v.State, 701 So.2d 607 (Fla. 2d DCA 1997), the SecondDistrict held that a violation of probation will not befound where the violation is due to negligence orineptitude. In this case, under the totality of thecircumstances, it is clear that Jones’ failure to obtainconsent from her probation officer prior to her move wasnot a willful and deliberate act.” Jones v. State, 730 So.2d349 (Fla. 4th DCA 1999).

(81) “[W]e hold that the trial court erred by finding that [thedefendant] willfully and substantially violated conditionnumber fourteen by failing to complete the batterersintervention program. Probation cannot be revoked for failingto attend a required program absent a showing that the failureto attend was a product of a knowing and willful act by thedefendant, and not merely the result of negligence orineptitude. See Stevens v. State, 599 So.2d 254, 255 (Fla. 3dDCA 1992). Here, the record shows that Buckins had not yetenrolled in the batterers intervention program because he waswaiting for the court to rule on his request for modification tosubstitute the CARP anger management program in its place.It also shows that the CARP program and the batterersprogram are comparable. Because Buckins completed asimilar program to what was required by the terms of hisprobation, and because his delaying action to enroll in thebatterers program appears to have been the result ofnegligence, we hold that he did not willfully orsubstantially violate condition number fourteen.” Buckinsv. State, 789 So.2d 1184 (Fla. 4th DCA 2001).

(82) The defendant had left an inpatient treatment program and aviolation was filed on that basis. The evidence showed that hehad attempted to be readmitted to that program, but hisrequest had been rejected by his probation officer. He had alsodone things on his own to get evaluated and to comply withthe recommendations of that evaluation. The trial judge foundthe defendant guilty of the violation. On appeal, the courtfound that the evidence was insufficient to show a willful

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and substantial violation. “The circuit court did not havebefore it competent evidence of the specific instructions Mr.Hines received as to condition 20, which on its face does notrequire that Mr. Hines be given only one opportunity tosubmit to an evaluation and pay for treatment, nor doesit contain any time limitations for successful completion ofa program.” Hines v. State, 789 So.2d 1085 (Fla. 2d DCA2001). See also Savage v. State, 120 So.3d 619 (Fla. 2d DCA2013).

(83) The defendant could not be violated for failure to get a GEDwhere the failure resulted from confusion and lack oftransportation. Butler v. State, 775 So.2d 320 (Fla. 2d DCA2000). See also Meade v. State, 799 So.2d 430 (Fla. 1st DCA2001).

(84) [REALLY IMPORTANT CASE RECOGNIZINGCHANGE IN LAW.]The court relied on the decisions inButler and Meade. The defendant was found guilty of aviolation for failure to report for random urinalysis. Hetestified that this occurred because of transportationproblems; nevertheless, the trial judge found that hewillfully violated his probation. On appeal, the courtaffirmed. The court acknowledged that in Meade v. State, 799So.2d 430, 432 (Fla. 1st DCA 2001), the court held that suchan excuse was valid and precluded a finding of willfulness.“However, to the extent that Meade ... stand(s) for theproposition that a per se rule exists prohibiting revocationof probation for failure, allegedly caused bytransportation problems, to keep a single appointment, webelieve they have been implicitly overruled by thesubsequent decision of our supreme court in State v.Carter, 835 So.2d 259 (Fla.2002). In Carter, the appellant’sprobation had been revoked because he failed to file a singlemonthly report. Id. at 260. On appeal, this court reversed,applying a per se rule that, as a matter of law, failure to file asingle monthly report cannot constitute a substantial violation.Id. at 260–61. Our supreme court quashed the decision ofthis court, rejecting the concept of a per se rule that sometypes of violations can never constitute willful andsubstantial violations of the conditions of one's probation.Id. at 261. In doing so, the court said that ‘[t]rial courts mustconsider each violation on a case-by-case basis for a

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determination of whether, under the facts and circumstances,a particular violation is willful and substantial and issupported by the greater weight of the evidence.’ Id.According to the court, because ‘[t]he trial court is in abetter position to identify the probation violator’s motive,intent, and attitude and assess whether the violation isboth willful and substantial,’ ‘it makes sense to allow thetrial court the discretion to weigh each situation withoutthe mandates of a bright line rule requiring revocation orpreventing it.’ Id. at 262.” Mier v. State, 58 So.3d 319 (Fla.1st DCA 2011).

(85) A violation cannot be deemed willful if the defendant wasunable to comply because he was incarcerated onunrelated charges during the probationary period. Muthrav. State, 777 So.2d 1067 (Fla. 3d DCA 2001).

(86) The trial judge violated probation because the defendantfailed to complete a program. On appeal, the court reversedbecause the failure to complete the program had to bethrough his own fault. The only reason he was ejected fromthe program was because he was arrested. He prevailed on theissue of his arrest. Therefore, his termination from theprogram was not through his own fault. Rubio v. State, 824So.2d 1020 (Fla. 5th DCA 2002).

(87) The court relied on the decision in Rubio, in reversingrevocation. Defendant was in a drug treatment program andwrote an inappropriate letter to a woman outside the program.Consequently, he was dismissed from the program. The courtrevoked his probation. The court reversed because theevidence was insufficient to show that this was a willfulviolation. The evidence must show that the dismissal washis fault or responsibility. That requires proof that theprobationer was informed that dismissal was a potentialsanction for the behavior at issue. Here, there was noevidence that the defendant was so informed or that he wasever told that such letters were against the rules. Johnson v.State, 58 So.3d 411 (Fla. 1st DCA 2011).

(88) The evidence was sufficient to show a willful violation whereit showed that the defendant had been absent from his grouptherapy sessions. The fact that he had attended individual

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sessions did not require a different result. Santiago v.State, 722 So.2d 950 (Fla. 4th DCA 1998).

(89) The defendant’s community control was violated because hestayed longer than he was authorized at church. He wasauthorized to stay until noon. Instead, he went to the bishop’shome for group counseling until 5:30 P.M. On appeal, thecourt reversed revocation of community control because thealleged violation was de minimis. Boatwright v. State, 847So.2d 1141 (Fla. 3d DCA 2003).

(90) “We ... reverse the revocation as to ground two, failure toperform monthly community service hours, on the authorityof Davis v. State, 697 So.2d 895 (Fla. 2d DCA 1997). Thestate argued in the trial court that defendant failed to completethe 30 hours required for the period in question. However,defendant had completed 18 hours in that period. Here, as inDavis, defendant substantially performed communityservice hours during the time he was on communitycontrol, and there is no evidence of a willful andsubstantial violation of this requirement.” Dominguez v.State, 848 So.2d 1198 (Fla. 3d DCA 2003).

(91) Defendant’s community control was violated solely for “(1)for being briefly absent from his residence to retrieve abirthday present from his parked car for his son, and (2) forbeing only a short distance away buying cigarettes.... Thegreater weight of the evidence did not show that the two actsshould have been considered as a willful and substantialviolation of the community control. (citations omitted) Ineptor negligent conduct is insufficient to demonstratewillfulness. McCray, supra, at 778. Accordingly, therevocation of defendant's community control is reversed.”Cranz v. State, 854 So.2d 843 (Fla. 3d DCA 2003).

(92) The defendant was accused of violating these conditions “(6)You will not use intoxicants to excess. You will not visitplaces where intoxicants, drugs or other dangerous substancesare unlawfully sold, dispensed, or used. .... (12) You shall not(consume any alcohol/illegal drugs) (be in possession ofalcohol or illegal drugs) (associate with persons who usealcohol or illegal drugs) (frequent places where alcohol is themain source of business or illegal drugs are used).” “[An]

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officer testified that ... he came into contact with Hananiaduring a traffic stop. Hanania was a passenger in the car.” Asa result of that contact, drugs were discovered in the car, butothers were in the car. “The officer acknowledged that he wasunable to testify that Hanania knew of the presence of thenarcotics or even what Hanania might have been able to seewhile in the car.” The defendant explained that he had nosuch knowledge and why that was true. The trial judgerevoked probation. On appeal, the court reversed. “Nothingin the record demonstrated that Hanania knew of thepresence of the drugs or the scale, or that he was inpossession of or had the ability to exercise control overthose items.... Additionally, there was no evidence thatHanania knew that the car was a place where drugs werebeing unlawfully sold, dispensed, or used, that Hananiaknew that the driver was a person who used alcohol orillegal drugs, or that Hanania otherwise willfully andsubstantially violated any portion of [the] conditions.Finally, there was no evidence that contradicted Hanania’sexplanation as to why he was a passenger in the car.”Hananiav. State, 855 So.2d 92 (Fla. 2d DCA 2003).

(93) Defendant was on community control. He checked himselfinto a mental institution. Thus, he was away from hisresidence. He was charged with a violation of communitycontrol by being away from his residence. On appeal, thecourt found that the evidence did not support a willfulviolation because there was no evidence suggestinganything other than a medical emergency. Nevertheless,the revocation and sentence was affirmed because theevidence supported other violation. Ogletree v. State, 886So.2d 420 (Fla. 2d DCA 2004).

(94) The defendant was ordered to live at the treatment program.He absconded. “By leaving the program withoutpermission, Spayde violated condition three. Accordingly,the trial court's finding of that violation is affirmed.” Spaydev. State, 899 So.2d 1274 (Fla. 2d DCA 2005).

(95) “[A]s to Eubanks’ violation of the condition requiring her toremain confined to her approved residence, we conclude thatthe court abused its discretion in finding a violation. Thecourt found that Eubanks had violated her community control

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by failing to remain confined to her approved residence onfour separate Sundays. However, Vetter testified that hehad authorized Eubanks to be absent from her residenceon those Sundays from 8:30 a.m. until approximately 9p.m. in order to complete her community service hours.The fact that Eubanks apparently was not where she wassupposed to be establishes her violation of the communityservice condition of probation discussed above; it does notestablish that she violated the condition requiring her toremain confined to her approved residence.” Eubanks v.State, 903 So.2d 1005 (Fla. 2d DCA 2005).

(96) “[T]he trial court found that Eubanks violated the terms of hercommunity control by failing to comply with instructions thatshe attend weekly counseling sessions at PMG.... As of May20, 2004, the date that the affidavit of violation was filed,Eubanks should have attended twelve classes. Vetter testifiedthat she failed to attend the April 6, 2004, and May 4, 2004,classes. Eubanks explained to Vetter that she missed the April6, 2004, class because she had just moved to a new residenceand had failed to reset her alarm clock. She said that shemissed the other class because she had a court date involvingher children. Given the fact that Eubanks missed only twoof the approximately twelve classes she was required toattend, we cannot say that she willfully and substantiallyviolated this condition. We therefore conclude that the trialcourt abused its discretion in revoking Eubanks’ communitycontrol on this basis.” Eubanks v. State, 903 So.2d 1005(Fla. 2d DCA 2005).

(97) “Mr. Robinson violated condition 3 by moving from hisapproved residence without permission and leaving hiswhereabouts unknown until his arrest for the new lawviolations, and condition 9, by failing to follow instructionsand report to the probation office. These are willful andsubstantial violations of probation.” Robinson v. State, 907So.2d 1284 (Fla. 2d DCA 2005).

(98) The defendant was accused of violating a condition of hisprobation that required “the defendant to report in person tohis community control officer at least one time a week or, ifunemployed, to report as directed.... [The defendant]conceded at the revocation hearing that [his probation officer]

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did, in fact, visit his house ... and instructed [the defendant] toreport to her. Asked why he had not reported to the officer thenext day, [the defendant] testified he had been having ‘spells’involving headaches and nausea, which almost impaired hisphysical movement. Given this testimony, the trial courtaccepted [the probation officer’s] account that she hadspecifically told [the defendant] to report to her the nextday and that [the defendant] had neither done so norcommunicated to her on that date that he was sick andcould not report in person.” This was a willful andsubstantial violation. Smith v. State, 909 So.2d 421 (Fla.1st DCA 2005).

(99) The defendant was placed on community control for lewd andlascivious assault on a minor. Pursuant to §948.03(5)(a) itwas a standard condition of his community control that he notpossess any pornographic materials “relevant to the offender’sdeviant behavior pattern.” He was accused of violating theconditions of his community control by possessing apornographic film. He argued that it was not a violationbecause it did not depict the exact type of deviant act hehad engaged it. The trial court concluded that thecondition prohibited possession of any pornographicmaterial. On appeal, the court agreed. Kasischke v. State,946 So.2d 1155 (Fla. 3d DCA 2006).

(100) It was a condition of probation that the defendant have nodirect or indirect contact with the victim. The defendant wasaccused of being at the victim’s residence. The only evidencewas that the victim called the defendant. That was notcharged, and even if it had been, it did not constitute awillful and substantial violation. Jackson v. State, 970So.2d 346 (Fla. 2d DCA 2007).

(101) “The State ... alleged Marzendorfer violated probation byfailing to comply with the probation officer’s instruction in avoice message, in which the officer allegedly sought a returnphone call, and in response to which appellant e-mailed theofficer. Appellant’s testimony at trial, never disputed by theState, established he was working in a remote area of thecounty with no cellular reception when the probation officercalled and left a voice message requesting a return contact.The parties presented conflicting evidence on whether the

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officer instructed appellant to call or merely to ‘contact’him. Accepting the State’s version, evidenced by the officer’stestimony that he told appellant to call, we neverthelesscannot conclude that appellant, working from early the nextmorning until late the next night in the same remote area,willfully and substantially violated his probation by e-mailingthe probation officer with a specific update on hisemployment status and promising to contact him soon. Wenote that the State takes no issue with the accuracy ofappellant’s response, only the medium.” Marzendorfer v.State, 976 So.2d 596 (Fla. 1st DCA 2007).

(102) “The trial court revoked appellant’s probation for failing toreport to his probation officer, for leaving the county of hisresidence, and for a new criminal violation. Because therecord shows that appellant reasonably believed that hewas not on probation when he was released from prisonand his supervising officer never instructed him on theconditions of his probation, no willful violation wasproved. We reverse.... Because the amount taken out of hispay during his work release from prison was greater thanthe amount owed for restitution, Jenkins reasonablybelieved that he satisfied his probation obligation. Whenhe was released, he reported for instructions on hisconditional release, but his supervising officer testifiedthat he did not know Jenkins was on probation.Therefore, the officer could not have instructed him anddid not instruct him on his probationary terms. Thus,Jenkins reasonably believed that the officer’s instruction toreport on December 2, 2005, was for the purposes ofconditional release, not probation.... Not knowing that he wasstill considered on probation, he could not have intentionallyviolated probation by failing to report, by leaving hisresidence county, or by committing a new law violation.”Jenkins v. State, 963 So.2d 311 (Fla. 4th DCA 2007).

(103) The defendant was accused of violating probation by notcompleting his GED, his community service hours, andpayment of fines and costs. The trial judge found him guiltyand the court reversed because of the failure of the Stateto prove a willful and substantial violation of probation.These were special conditions. There was no evidence thatMr. Garity was told about the special conditions. “[T]here is

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nothing in the record before us that indicates that any paymentschedule for fines and costs was set out, nor is there anyevidence that Mr. Garity had the financial ability to paythem.” The Defendant testified that he had paideverything he was told to pay and was not informed of thespecial conditions. He said when he was told about thecommunity service hours he did them, but had not yet turnedin the paperwork. When he found out about the GEDrequirement, the classes were full. Garity v. State, 970 So.2d500 (Fla. 5th DCA 2007).

(104) It was a condition of probation that the defendant “‘notcontact [the] victim or [the victim’s] family during the periodof probation’”; and “write letters to credit card companiesassuming responsibility for debts he had run up fraudulentlyon his employer’s (the ‘victim’s’) account.... ‘To establish aviolation of probation, the prosecution must prove by apreponderance of the evidence that a probationer willfullyviolated a substantial condition of probation.’ Van Wagner v.State, 677 So.2d 314, 316 (Fla. 1st DCA 1996) (citingSalzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995)). Bothconditions at issue here are undoubtedly ‘substantial.’ Seegenerally State v. Carter, 835 So.2d 259 (Fla.2002).” TheState failed to show that the defendant willfully violatedthe no contact order. The evidence only showed that thedefendant made “reports to governmental authoritiesalleging illegal practices on the part of the victim’sbusiness.” That did not violate the no contact order. “Atthe revocation hearing, uncontradicted evidence establishedthat the assistant state attorney had not furnished the names ofthe credit card companies with pertinent accountnumbers--information which the trial court had directed begiven to Mr. Michael--either to Mr. Michael or to hisprobation officer. Both Mr. Michael and his probationofficer testified that he sought unsuccessfully to obtainthis information from his probation officer and from hislawyer. They also testified that Mr. Michael told hisprobation officer that he was having trouble acquiring theinformation. The State failed to prove that Mr. Michaelhad the information he needed to write letters assumingresponsibility for the credit card charges in question,despite his efforts to obtain it.” Michael v. State, 992 So.2d367 (Fla. 1st DCA 2008).

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(105) The defendant was given permission to move from CollierCounty to Dade County. He could not find an approvedresidence because he was a sex offender. So he was accusedof violating condition 3 by moving from his approvedresidence. He also failed to report to the Collier Countyprobation officer within two days. “The Collier Countyprobation officer testified that he was trying to find a suitableresidence for Newton in Miami, but none of the proposedlocations worked out. He also stated that Newton himself wasattempting to find a residence agreeable to the Dade Countyoffice, but that office refused to approve either of Newton’sproposed living arrangements. We note that the Statefrankly admitted that it did not present evidence sufficientto prove the condition 9 violation, that Newton willfullydisobeyed his probation officer’s directive to immediatelyreturn to Naples, because it had not established that hehad the ability to return. If he could not return and hecould not live in the designated residences, he could nothave willfully violated condition 3. See id. (‘A defendant'sfailure to comply with a probation condition is not willfulwhere his conduct shows a reasonable, good faith attemptto comply, and factors beyond his control, rather than adeliberate act of misconduct, caused hisnoncompliance.’).” Newton v. State, 996 So.2d 960 (Fla. 2dDCA 2008).

(106) Defendant’s probation was revoked for driving. “The ordersof probation entered in case numbers 02-16136 and 03-19130included the additional condition that the defendant ‘not driveor operate a motor vehicle until further [court] order’.” Thedefendant argued that the evidence was insufficient to provea willful and substantial violation because he got ahardship license. On appeal, the court disagreed. “Theprobation orders in case numbers 02-16136 and 03-19130plainly state that Ortiz is not to drive until further orderof the court. Further, during the hearing that resulted inthe probation orders, the judge stated that even if Ortizwere to succeed in securing a hardship license, he wasrequired to return to court.” Ortiz v. State, 2 So.3d 318(Fla. 4th DCA 2008).

(107) The defendant missed his curfew. He tried to call his

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probation officer twice. He said that he fell asleep on the busand missed his stop. He was in the emergency room. “TheState offered evidence to support Salazar’s theory thatGalego had missed curfew willfully because he had spentthe afternoon drinking at a party. First, Salazar testifiedthat when he had spoken with Galego that afternoon, he hadheard ‘some music’ and ‘a lot of noise and other people in thebackground,’ which gave him the impression that Galego wasat a party. On cross-examination, Salazar admitted thatthis was ‘just a guess.’ Second, the reason Galego gave formissing his curfew was that he had fallen asleep on a bus.Third, Salazar stated that when Galego had said that he felt‘really sick’ and wanted to go to the hospital, he ‘didn't soundwell,’ and ‘his speech was impaired somewhat.’ Finally, whenSalazar interrogated Galego the next morning, his answers‘didn't make any sense,’ and a saliva screen for alcohol testedpositive.... [T]he judge concluded that Galego’s hospital visitwas meant to cover up his drinking.... Dr. Greer had nevermet Galego prior to the hearing at which he testified, he hadreviewed the lab results from Galego’s emergency room visitthe night in question.” The doctor opined that the defendanthad not consumed alcohol but was suffering from diabetes.He explained in detail. “In addition to Dr. Greer’s testimony,Galego’s cousin testified that Galego ‘doesn’t drink’ and thatshe had not known him to drink anywhere. Salazar himselftestified that he had never smelled alcohol on Galego’s breathand had always found him to be sober. It is the State’sburden to prove, by the greater weight of the evidence,that a probation violation is a willful and substantial one.However, rather than provide substantial and competentevidence to prove its case, here the State relied upon sheerconjecture.... Based on Dr. Greer’s unrebutted testimony,which showed that Galego missed his curfew because ofissues with diabetes and not because he had beendrinking, we hold that the State did not, as a matter oflaw, satisfy its burden to prove the probation violation bya preponderance of the evidence.” Galego v. State, 27So.3d 152 (Fla. 3d DCA 2010).

(108) The court reversed a finding that the defendant committed awillful and substantial violation of probation where he wasnot at the tent the P.O. had approved as his residence duringthe curfew. He testified that he was at his step mother’s house

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for 20 minutes to use the restroom. The defendant hadcommitted no other violations and had complied with theconditions of his probation. “Cruz testified that [a] priorcurfew exemption also included permission to use nearbyrestrooms. While the officer denied that he intended toauthorize a curfew violation beyond that single occasion,he did not testify that he expressly limited permission tothis one instance, even though that may have been hisintention. Therefore, we hold that Cruz’s belief that hecould use a nearby restroom after curfew was notunreasonable.” Cruz v. State, 81 So.3d 501 (Fla. 4th DCA2012).

(109) “After almost two years of probation without incident, Brownwas not home when his probation officer arrived to conducta curfew check. As the probation officer began to leave,Brown’s vehicle came around the corner, heading home.Brown spoke with the probation officer and admitted toarriving home twenty-five or thirty minutes beyond hiscurfew. He explained that he was out picking up jobapplications at his brother’s house, approximately a seven-totwelve-minute drive away, and that he missed his curfewbecause his brother had been running late.” The trial judgefind that there was competent substantial evidence of aviolation despite the fact that the defendant had complied wellwith all other requirements of his probation. On appeal, thecourt reversed finding that the violation was notsubstantial and the trial judge applied the wrong burdennot recognizing the difference between competentsubstantial evidence and greater weight of the evidence.“More important, however, the trial court appears to haveapplied a prohibited per se rule. In broadly declaring allterms of probation ‘serious,’ the trial court seems to havebelieved revocation was automatically appropriatebecause a curfew violation had been proven. [T]he trialcourt revoked Brown’s probation without addressing theviolation in the context of his case.” Brown v. State, 86So.3d 1225 (Fla. 2d DCA 2012).

(110) The trial court found that the defendant willfully violatedprobation by violating curfew. On appeal, the court reversed.“The plain language of the written probation order set theappellant’s curfew from 6:00 p.m. until 7:00 a.m. when

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unemployed, but once employed; the curfew was to begin onehour after the appellant completed work and continue untilone hour prior to attending work.... There is ... no mandatethat the probation officer pre-approve the appellant’s workschedule. The language used by the sentencing court makesthe one hour before and after work provision self-executing.That is, once the appellant was employed, his curfew beganone hour after he concluded work, regardless of whether thattime was 6:00 p.m. or 8:00 p.m.... In the instant case, theappellant presented evidence that he was a paid employee forhis grandfather on April 12, 2009. The probation officerconfirmed that this was true. Thus, the trial court erred inrevoking probation when the evidence presented did notestablish that the appellant violated the terms of his probationas imposed by the sentencing court.” Williamson v. State, 43So.3d 843 (Fla. 1st DCA 2010).

4. The alleged conduct must constitute a substantial noncompliance.Rathburn v. State, 353 So.2d 902 (Fla. 4th DCA 1977); McCarrick v.State, 553 So.2d 1373 (Fla. 2d DCA 1989); Johnson v. State, 561 So.2d1254 (Fla. 2d DCA 1990); Young v.State, 566 So.2d 69 (Fla. 2d DCA 1990).

a. The court held that the trial judge abused her discretion in revokingprobation for being 20 minutes late reporting to begin serving hisjail sentence imposed as a condition of probation. This was not asubstantial violation. Smith v. State, 68 So.3d 968 (Fla. 1st DCA2011).

b. Reports, procedures and technical requirements.

(1) The defendant was found to have violated his conditions ofcommunity control by failing to: (1) file a report with hiscommunity control officer; (2) pay the cost of supervision forone month; (3) follow reasonable instructions of hiscommunity control officer regarding an interview at the un-employment office; and (4) call his community control officerfour times a week as directed. The Court found that theseviolations were substantial enough to warrant revocation ofprobation. Shamburger v. State, 484 So.2d 1365 (Fla. 1stDCA 1986).

(2) It was a condition of the defendant's probation that he“comply with all instructions [your probation officer] may

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give you.” He was accused of violating this condition byfailing to contact twenty prospective employers during aday-long job search and by not properly documenting his timeduring the job search. He was also accused of beingaccompanied by his father on the job search contrary to therules of the restitution center and instructions of his probationofficer. The evidence consisted of the following: (1) a listfrom the defendant showing fifteen business establishmentshe contacted on the specified date; (2) the defendant's testi-mony that some employers refused to sign the list prepared bythe restitution center and that he had received four job offers;(3) the father’s testimony that he drove his son to the fifteenjob interviews because they understood from the probationofficer that he was to help his son complete the probationprogram; (4) the defendant’s alleged violations occurredduring the first week of the probation; and (5) the defendantwas on probation for two weeks with only minor problemsand no other violations and he was hired on a full-time basisby one of the companies he contacted. The trial judge revokedhis probation. On appeal the Court reversed the revocation forthe following reasons: (1) the greater weight of the evidencemust show that the violations were willful and substantial;(2) technical violations are not sufficient to justifyrevocation; and (3) if the violation consists of failure tocomplete a program, the evidence must show that such failurewas the fault of the defendant. The evidence in this casefailed to meet these standards. Molina v. State, 520 So.2d320 (Fla. 2d DCA 1988).

(3) It was a condition of probation that the defendant answer allof the inquiries of his probation officer truthfully. Thedefendant gave a false name for himself and his familymembers to his probation officer and told her that he hadnever been arrested or in trouble as an adult when he hadbeen on parole for another crime. On appeal, the Court heldthat such behavior constituted a “substantial” violation ofprobation. Roseboro v. State, 528 So.2d 499 (Fla. 2d DCA1988).

(4) The defendant did not tell his probation officer the truthabout being on life parole in another state. That was asubstantial violation. Walton v. State, 780 So.2d 1043 (Fla.4th DCA 2001).

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(5) Failure to file monthly reports is a substantial violationsufficient by itself to support revocation. McPherson v.State, 530 So.2d 1095 (Fla. 1st DCA 1988). See alsoMcLaurin v. State, 585 So.2d 473 (Fla. 3d DCA 1991).

(6) [THIS IS A VERY IMPORTANT CASEESTABLISHING THE PRINCIPLE THAT THERE ISNO PER SE RULE.] The Supreme Court rejected “anyper se rule that the failure to file a single report may neverjustify probation revocation... [F]ailure to file a singlemonthly report may, in certain circumstances, justifyprobation revocation if such failure is willful andsubstantial and supported by the greater weight of theevidence.... Trial courts must consider each violation on acase-by-case basis for a determination of whether, underthe facts and circumstances, a particular violation iswillful and substantial and is supported by the greaterweight of the evidence. In other words, the trial courtmust review the evidence to determine whether thedefendant has made reasonable efforts to comply with theterms and conditions of his or her probation. See Thorpev. State, 642 So.2d 629 (Fla. 1st DCA 1994); Stevens v. State,599 So.2d 254 (Fla. 3d DCA 1992)... [P]robation reports arenot merely technical niceties and the failure to report is aserious violation of the privilege of probation.... However,the application of these principles does not mean failure tocomply in every instance is, a fortiori, a willful andsubstantial violation justifying revocation.... There may becircumstances where revocation is patently unfair. Forexample, in Hightower v. State, 529 So.2d 726 (Fla. 2d DCA1988), the record was not clear as to whether the defendantwas informed that he had the duty to file a report, and inJordan v. State, 412 So.2d 970 (Fla. 2d DCA 1982), thedefendant filed three reports late because he was in thehospital. However, there are also circumstances where failureto file a single report may be a willful and substantialviolation which would justify revocation. In Schwartz, thedefendant argued that he did not file his monthly probationreport because he was in an accident. The evidence showedthat the defendant went to work after the accident, during thetime he claimed to be incapacitated. The defendant’s failureto comply with the terms of probation was a blatant disregard

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of his probation obligations and the revocation was found tobe justified. These cases demonstrate why it makes sense toallow the trial court the discretion to weigh each situationwithout the mandates of a bright line rule requiringrevocation or preventing it. The trial court is in a betterposition to identify the probation violator’s motive, intent,and attitude and assess whether the violation is bothwillful and substantial. Carter filed his report late onpurpose (which may constitute willful behavior), but he statesthat he did so because he wished to appear before the court todiscuss his ability to make restitution. When he attempted toget help from the public defender’s office, he said they gavehim the runaround. A friend told him to stop reporting, that hewould then be in violation and would have to appear beforethe court, at which time he could address the issue ofrestitution. Although the probation officer may not haverealized the consequences of her discussion with thedefendant, she apparently tacitly endorsed this method. Theprobation officer testified that she told Carter that in order fora probationer to get back before the court, he or she wouldneed either to get a public defender or violate probation. SinceCarter felt he got the runaround from the public defender'soffice, he then intentionally violated his probation by failingto file his report. Whether these actions rise to the levelnecessary to justify revocation is within the province ofthe trial court to determine. The trial court has broaddiscretion to determine whether there has been a willful andsubstantial violation of a term of probation and whether sucha violation has been demonstrated by the greater weight of theevidence.” The court remanded the case to the First DistrictCourt of Appeal for consideration based on the SupremeCourt’s opinion. State v. Carter, 835 So.2d 259 (Fla. 2002).See also Perez v. State, 884 So.2d 306 (Fla. 2d DCA 2004)(the court found that the evidence did not support the findingthat the defendant had willfully failed to report as directed bythe probation officer); M.M. v. State, 874 So.2d 736 (Fla.4th DCA 2004); Oates v. State, 872 So.2d 351 (Fla. 2d DCA2004)(defendant violated for failing to file reports on time,but cause remanded because trial judge considered extraneousmatters, and the record did not show whether the judge wouldhave found the violation willful without such matters).

(7) In a two to one decision, the court upheld revocation of

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probation for failing to file monthly reports after thedefendant was arrested by immigration authorities. Thedefendant said that his parents were told that he did nothave to report. The split came over whether there was anyevidence supporting the trial judge’s rejection of thedefendant’s testimony. Castro v. State, 867 So.2d 1254(Fla. 4th DCA 2004).

(8) Filing one report five days after it was due and anotherone a day after it was due was not sufficient for revocation.Monroe v. State, 679 So.2d 50 (Fla. 1st DCA 1996).[Probably no longer valid in light of Carter.]

(9) The issue here was whether the failure to file two monthlyreports was of sufficient significance for the trial judge tofind that the violation was material. The court held that if thecondition was valid, the trial judge had the discretion tofind a violation of that condition material. Diller v. State,711 So.2d 54 (Fla. 5th DCA), rev. denied, 719 So.2d 892(Fla. 1998). See also Williams v. State, 811 So.2d 814 (Fla.3d DCA 2002).

(10) Where the defendant was accused of violating his probationby not filing reports and the reports were all filed andaccepted before the revocation hearing, late filing no longeramounted to a violation. The Court also indicated that theresult might have been the same if the probation officer hadrefused the defendant's tender of the late reports. Hoshaw v.State, 533 So.2d 886 (Fla. 3d DCA 1988). [Probably nolonger valid in light of Carter.]

(11) Where the defendant was required to submit a report bya set day each month and failed to do so, the court did notabuse its discretion in finding the defendant guilty of aviolation of probation even though the reports weresubmitted and accepted by the probation officer prior tothe hearing. This case appears to be inconsistent with thedecision in Hoshaw v. State, 533 So.2d 886 (Fla. 3d DCA1988). Jordan v. State, 610 So.2d 616 (Fla. 1st DCA 1992).

(12) The failure to follow routine instructions from theprobation officer does constitute grounds for revocation.But a 24 hour delay in the receipt of the required report

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by the probation officer during a visit by the probationerfor another reason was not alone a substantial violation.The failure to file one report in a timely fashion which wascorrected by the probationer could not be deemed asubstantial violation. Goley v. State, 584 So.2d 139 (Fla. 5thDCA 1991). See also Brown v. State, 776 So.2d 329 (Fla.5th DCA 2001). [Probably no longer valid in light ofCarter.]

(13) Where the defendant failed to report on the day requiredby his probation officer or at any other time, the violationwas substantial. Brown v. State, 776 So.2d 329 (Fla. 5thDCA 2001).

(14) The evidence was sufficient to establish a violation where itsupported the conclusion that the defendant had failed to filewritten reports and to make a good faith effort to payrestitution. Del Valle v. State, 564 So.2d 607 (Fla. 3d DCA1990).

(15) It is not proper to revoke probation for technicalviolations if the defendant has not been instructed on theterms of his probation. The violations cannot be willful orsubstantial. Washington v. State, 579 So.2d 400 (Fla. 5thDCA 1991).

(16) The state met its burden of showing that the violation waswillful and substantial. The defendant was on communitycontrol. On June 25, 1994 the probation officer visited hishome. He was not there, but arrived carrying a bag ofgroceries. He told his probation officer that he needed thegroceries, but did not have time to get permission. He didhave permission to go to work and to church. The probationofficer warned him that if he violated his community controlagain a probation report would be filed. Three days later theprobation officer returned to the home. The officer saw thedefendant's car in the driveway, but he did not answer thedoor. Since the defendant had permission to be at church, theprobation officer went there. The church was closed. Theofficer returned to the defendant's home. There were two carsin the driveway, but the defendant still did not answer thedoor. A violation was filed. The probation officeracknowledged that the defendant was allowed to be in the

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yard and testified that on other occasions when the defendantdid not answer the door, he found him outside on the backporch. This time, however, the probation officer did notcheck the yard. This was not a technical violation. “Thegreater weight of the evidence showed that on the secondoccasion [the defendant] was not at church, where he hadpermission to be, nor at home, where he was otherwiserequired to be.” There was no abuse of discretion in findinga violation. Allen v. State, 666 So.2d 259 (Fla. 4th DCA1996).

(17) Whether the defendant’s failure should be excused is a matterof discretion for the trial court. Where the defendant livedonly three miles from the place where he was to report,the trial court did not abuse its discretion in finding aviolation of community control for failure to report. Thedefendant could have walked. Llumbet v. State, 698 So.2d381 (Fla. 4th DCA 1997).

(18) The defendant was arrested in March of 1996 for violation ofprobation by committing a new crime. He was also violatedfor failure to file monthly reports from April of 1996 throughDecember of 1996. The defendant testified that, based inpart on information he had been provided by a probationofficial, he believed that his probation had beenautomatically revoked when he was arrested so that he nolonger had to report. On appeal, the court found that underthese circumstances the failure to report could not be found tobe a willful violation. The state elected not to proceed on thedomestic violation and the record was silent as to whetherthe defendant had been advised of the terms andconditions of his probation. Smith v. State, 711 So.2d 100(Fla. 1st DCA 1998).

(19) The defendant was convicted of violating his probation byfailing to report to his probation officer by a specific date. Onappeal, the court reversed. “At the violation of probationhearing, McCollum testified that he was never advised bythe trial court or any probation officer of the date bywhich he was required to report to probation.McCollum’s testimony was unrefuted. The State producedno evidence that the sentencing judge or a probationofficer had advised McCollum of a date by which he was

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required to report to probation. Although the order ofprobation had a provision requiring a probationer to report toprobation immediately, there was no evidence thatMcCollum was ever provided a copy of the order.... Weconclude the evidence was insufficient to support a findingthat McCollum had willfully violated his probation by failingto timely report to his probation officer.” McCollum v. State,950 So.2d 1285 (Fla. 5th DCA 2007).

(20) The defendant appealed the order revoking probation. Oneviolation was dealing in stolen property. “We conclude thatthere was sufficient circumstantial evidence of ‘guiltyknowledge’ to permit the trial court to find, by a greaterweight of the evidence, that Davis dealt in stolen propertyand provided false verification of ownership to a pawnbroker. However, we emphasize that our conclusion impliesonly that the state satisfied the lower standard of proof inprobation violation hearings.” The second violation wasfailure to report to the probation officer. “While theprobation officer made some passing statements regardinghis inability to contact Davis, the probation officer’stestimony never actually established that Davis failed tofile any required monthly reports. Because we affirm thetrial court’s findings that Davis committed new violations ofthe law, which were more serious than the ‘failure toreport’ violation, there is no need for the trial court toreconsider the revocation of Davis’ probation.” Davis v.State, 945 So.2d 607 (Fla. 4th DCA 2006).

(21) “The defendant appealed the trial court’s order revoking hisprobation.... Under the terms of his probation, Appellant wasexpected to file a monthly report by the 5th of each month andcomply with his probation officer’s instructions. At theviolation of probation hearing, his probation officer testifiedthat Appellant violated his probation when he failed tocomply with these requirements. She explained that Appellantfailed to report for his probation appointment on October 4,2005, which was scheduled to enable Appellant to timelycomplete his monthly report. Appellant reported to the officethe next day, approximately 20 minutes after the officeclosed. The probation officer testified that she spoke toAppellant through the locked door and specifically instructedhim to report to the office at 10:00 am on October 6.

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Appellant failed to show, and instead turned himself in at thejail on October 19. Appellant testified that he could not makehis appointment on October 4 because he worked late, and hecame to the office on October 5 because he thought a lateappointment was available. Appellant testified that he failedto show on October 6 because he ‘knew he would be violated’and because he had transportation problems. Appellantadmitted that he never called his probation officer to explainhis whereabouts on October 6.... ‘[F]ailure to file a singlemonthly report may, in certain circumstances, justifyprobation revocation if such failure is willful andsubstantial and supported by the greater weight of theevidence.’ State v. Carter, 835 So.2d 259, 261 (Fla.2002)(citing Hightower v. State, 529 So.2d 726 (Fla. 2d DCA1988)). Although the supreme court has explained thatthere may be circumstances in which revoking anappellant’s probation based on failure to file a singlereport would be ‘patently unfair,’ it would not be unfairbased on the circumstances here. See id. at 262. Appellantfailed to complete his report by the assigned date and did notattempt to file it shortly thereafter. In addition, he did notinform his probation officer of a transportation problem orattempt to explain the situation. Although Appellant testifiedthat he turned himself in because he knew he would beviolated, he waited two weeks before doing so; therefore, thetrial court did not abuse its discretion in finding thatAppellant willfully and substantially violated his probationwhen he failed to file the monthly report.” Robinson v. State,940 So.2d 516 (Fla. 1st DCA 2006).

(22) “The State first alleged that Marzendorfer violated probationby misrepresenting his employment status, stating orallyto the officer and on written monthly reports that he was‘self-employed’ as the ‘president’ of ‘KGM Holdings,Inc.,’ which he attempted to form, albeit unsuccessfully, byfiling articles of incorporation with the Department of Statein March 2006. The State essentially contends that theinclusion of the term ‘Inc.’ in appellant’s monthly reportsrenders them untruthful, as the entity had apparently notbeen incorporated as of the dates on which appellant filedthe reports. We do not agree, however, that appellantwillfully and substantially violated probation bydescribing his business as a corporation. The trial court set

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a legally enforceable standard in the probation order itself,requiring appellant’s monthly reports to be ‘full andtruthful,’ rather than ‘technically and absolutelyaccurate.’ .... Without evidence of an intent to mislead or toevade supervision, we cannot conclude that mereadministrative, technical errors generally warrant theimprisonment of those probationers who are otherwiseperforming satisfactorily. We note that appellant'scharacterization of his employer as his self-created ‘KGMHoldings, Inc.,’ was not technically accurate, but we concludethat appellant’s truthful representations that he was‘self-employed’ as the president of his own business entityat the time were substantially correct and sufficient toinform the probation officer of appellant’s employmentstatus and earning ability. We cannot conclude, and theState does not argue, that the probation officer’s belief aboutthe legal form of Marzendorfer’s business entity affected theofficer's management of appellant's case. To be clear,however, we do not hold that a probationer’smisstatement of the legal name of his or her employer cannever support a conviction for violating probation, butrather that, in this particular case, under the analysisprescribed by Carter, the evidence at trial was insufficientto prove that appellant willfully and substantially violatedthe condition of probation requiring him to submit ‘fulland truthful’ monthly reports. We so conclude in theabsence of any direct or circumstantial evidence provingMarzendorfer affirmatively and meaningfully lied about hisemployment in an effort to evade or frustrate supervision.”Marzendorfer v. State, 976 So.2d 596 (Fla. 1st DCA 2007).

(23) The court revoked probation and sentenced the defendant tothree years. “The affidavit of violation of probation allegedthat she failed to promptly and truthfully answerinquiries. Finding the violation willful, but notsubstantial, we reverse.” The evidence established that thedefendant lied to her probation officer about her brotherdying. The probation officer received a law enforcementreport as to defendant’s location and started looking for her.She reported that her brother died and she needed to be withher family. The probation officer didn’t believe her and didnot let her go. In fact, her brother had not died. The defendantthen tested negative for drugs. “Andl was on a number of

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psychotropic medications and had recently been Baker-Acted.She did not have any new law violations, positive drugscreens, or other incidents of untruthful statements. At alltimes, she was compliant with court orders relative torestitution, court costs, cost of supervision, communityservice, and treatment. Under these circumstances, while herlie to the probation officer was willful, we cannot conclude itwas substantial so as to warrant finding a violation ofprobation. Andl was not attempting to avoid a drug test orotherwise evade her probation obligations.... She explainedthat she had been struggling with the dosage of hermedications, had been laid off from work, was in the motelroom alone, and wanted to go to Ocala and see her family. Nojustification existed for lying to the probation officer, andit resulted in an unnecessary expenditure of time andeffort. However, it did not rise to the level of a materialviolation or warrant a sentence of three years in theDepartment of Corrections. (Citation omitted)Importantly, this opinion should not be read as a licenseto be untruthful to the inquiries of a probation orcommunity control official. Generally, such conduct is asubstantial and material violation of probation orcommunity control. This decision, involving a probationerwith mental health issues who had been makingreasonable efforts to comply with the terms of herprobation, is restricted to its facts.” Andl v. State, 993So.2d 1172 (Fla. 5th DCA 2008).

(24) The court relied on Andl in support of reversal. The defendanthad told his probation officer that he missed an appointmentbecause of traffic, when he actually had to stay at work untilafter the appointment. The court found that this was not asubstantial violation. “His single misstatement about thetime that he left work did not demonstrate that he wasunfit for probation. Under these circumstances, we cannotconclude that Ortiz’s conduct rose to the level of asubstantial violation.” Ortiz v. State, 54 So.3d 1020 (Fla.2d DCA 2011).

(25) Being 25 or 30 minutes late for curfew was not asubstantial violation under the circumstances of this casewhere there was otherwise compliance and there was areasonable explanation. There was no showing the

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defendant was unfit for probation. Brown v. State, 86 So.3d1225 (Fla. 2d DCA 2012).

c. Completion of counseling and programs.

(1) “The issue we must decide is whether it is within thediscretion of the trial court to find a defendant in willfuland substantial violation of probation for beingdischarged from a court-ordered drug treatment programfor nonattendance, even if the sentencing court did notspecify the number of chances the defendant would haveto successfully complete the program or impose a timeperiod for compliance. In other words, does a sentencingcourt’s failure to be specific in the probation order on thenumber of attempts or time period for completing thedrug treatment program put the probationer on adequatenotice that being discharged from the treatment programfor willful nonattendance could result in the revocation ofhis or her probation.... There are three avenues in which thetrial court may order a probationer to complete a drugtreatment program: (1) as a special condition of ordinaryprobation; (2) as a condition of drug offender probation undersection 948.20, Florida Statutes (2005); or (3) as part of a‘treatment based drug court program’ under section 397.334,Florida Statutes (2005). Although the conflict cases at issuehere only involve drug treatment programs as outlined in (1)and (2) above, a review of the statutes authorizing drugoffender probation and the use of drug courts indicates thelevel of flexibility that is necessary in dealing withprobationers with substance abuse problems.... [B]ecause thecircumstances of treating each substance abuse problem areunique to that individual, trial courts must be able to operatewith an element of flexibility regardless of whethercompletion of a drug treatment program is required througha standard probation order, as part of drug offender probation,or through the treatment-based drug court program.... Wehave previously warned of the inherent problems inestablishing bright line rules in the context of a trialcourt's decision to revoke probation. See Carter, 835 So.2dat 261.... We continue to adhere to the principle that trialcourts must have broad discretion in deciding whether torevoke a defendant’s probation. We conclude that a trialcourt could be well within its discretion in finding a

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willful and substantial violation where a defendant fails tocomplete a court-ordered drug treatment program, eventhough the order did not specify how many chances thedefendant had to complete the program or when it had tobe completed. Probation orders need not include everypossible restriction so long as a reasonable person is puton notice of what conduct will subject him or her torevocation. We agree with the Fifth District that a conditionof probation should ‘provide reasonable individuals ofcommon intelligence the basis to know and understand itsmeaning.’ Lawson, 941 So.2d at 489; (citations omitted)Although the conditions should be clearly set out andmust mean what they say, every detail need not be spelledout and the language should be interpreted in its common,ordinary usage. See Rothery, 757 So.2d at 1259. Thus, aprobation order that requires the completion of a drugtreatment program but fails to specify time parameters shouldbe read in a commonsense manner. Accordingly, aprobationer who has been given the privilege of beingplaced on probation, in lieu of serving jail time, is put onadequate notice that the treatment program should beundertaken at the beginning of the probationary periodand that, if he or she is discharged for nonattendance, heor she may not have another chance to complete theprogram. As previously discussed, for those drug-addicteddefendants who are making genuine attempts to recover fromtheir illnesses, flexibility of the treatment program is vital totheir success. However, just as a defendant who unfortunatelyrelapses while making good faith efforts at rehabilitationshould not be subject to a bright line rule requiring theautomatic revocation of his or her probation no matter thecircumstances, a defendant who flouts the system by makinglittle or no effort should not be able to escape theconsequences of his or her noncompliance through a per serule that prohibits the trial court from revoking simplybecause the order failed to specify the time for completion.This is the essence of the Fifth District’s reasoning and weagree with this approach. We caution, however, that ourdecision today should not be interpreted as a completerejection of detailed orders or more specific conditions. Infact, we take this opportunity to encourage trial courts tobe as specific as possible so that probationers are on clearnotice of exactly what they are required to do and what

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actions will subject them to revocation. However, wereject a bright-line rule in the context of drug treatmentprograms because such a rule may undermine the trialcourt’s ability to ‘consider each violation on acase-by-case basis for a determination of whether, underthe facts and circumstances, a particular violation iswillful and substantial and is supported by the greaterweight of the evidence.’ Carter, 835 So.2d at 261.... For allthe foregoing reasons, we answer the certified question inthe negative and conclude that a trial court has discretionto find a defendant in willful and substantial violation ofprobation for being discharged from a court-ordered drugtreatment program for nonattendance, even if thesentencing court fails to specify the number of chances thedefendant would have to complete the program or imposea time period for compliance. Although we encourage trialcourts to be detailed and specific in probation orders in orderto ensure that a defendant is clearly put on notice of whatconduct is both required and prohibited, we cannot adopt abright line rule in the context of drug treatment programsbecause to do so would undermine the trial court’s ability toassess the unique and distinct factual circumstances of theindividual probationer's case. Accordingly, we approve theFifth District’s decision in Lawson and disapprove the SecondDistrict's decisions in Singleton, Davis, Salzano, Spayde,Hardy, Vernon, Yates, Anderson, and Jones, to the extentthese decisions applied a per se rule that a trial court abusesits discretion in revoking probation for being discharged froma court-ordered drug treatment program, where the order failsto specify the number of chances to complete the program ortime parameters within which the program must becompleted.’ The Court concluded that the trial court had notabused its discretion in revoking Lawson’s probation.Lawson v. State, 969 So.2d 222 (Fla. 2007).

(2) The defendant was participating in drug counseling. He hada relapse and tested positive for a narcotic. Because of hiscandor the program director decided to let him back into theprogram if he had clean urine five days later. He complied.Nevertheless, he was violated. The court reversed on thegrounds that it was not a substantial violation. “The recordin this case illustrates a defendant fit for probation ratherthan ‘a defendant who flouts the system by making little

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or no effort ... to escape the consequences of his or hernoncompliance [.]’ Lawson, 969 So.2d at 236. Therefore, wehold that the trial court abused its discretion in rejectingappellant's argument that his temporary discharge wasbased on less-than-willful conduct and constituted a deminimis, rather than a substantial, violation.” Broome v.State, 96 So.3d 440 (Fla. 4th DCA 2012)

(3) “The conflict issue here is whether, where the probationorder does not specify the number of attempts thedefendant has to complete a sex offender treatmentprogram or impose a time limit for completion, it remainswithin the trial court’s discretion to find a defendant inviolation of probation for failing to complete theprogram.... Based substantially on our decision in Lawson,we hold that the failure of a probation order to includespecific deadlines or the number of attempts thedefendant will be given to complete sex offender treatmentdoes not eliminate the trial court’s discretion to revoke sexoffender probation for failure to complete the program onthe first try.... [I]n the context of substance abuse, Lawsonrejected a bright-line rule ‘that a trial court may never findthat a probationer substantially and willfully violatedprobation after being discharged from a drug treatmentprogram for nonattendance if the probation order fails tospecify the number of attempts allowed or set a specific timeparameter for completion.’ Id. at 234.... Today, we resolve theissue as it relates to sex offender treatment. [T]he statutesaddressing sex offender treatment reflect the same desire for‘rehabilitation pursuant to an individualized treatment plan,’and a corresponding need for trial court flexibility. Wetherefore hold that the reasoning of Lawson applies.... Thelegislative goal of individualized treatment, as well asother policies behind probation, also favors individualizeddeterminations of whether the failure to complete atreatment program constitutes a violation of probation....Sex offender treatment, like drug treatment, focuses on‘rehabilitation pursuant to an individualized treatmentplan.’ Lawson, 969 So.2d at 232; see §§ 948.001(10),948.30(1)(c), 948.31, Fla. Stat. (2007). As with theprobationary condition of drug treatment, trial courts musthave the flexibility to address particular circumstances. Wetherefore conclude, consistent with Lawson, that even

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where the probation order fails to specify the number ofchances the defendant has to complete the program orimpose a time limit for compliance, the trial court retainsdiscretion to find a defendant in willful and substantialviolation of probation for failure to attend and completea sex offender treatment program.... [C]onsistent with ourrecent decision in Lawson, 969 So.2d 222, we hold thateven if a sentencing order does not specify the number ofchances the defendant will be given to complete sexoffender treatment or a deadline for completing it, a trialcourt retains the discretion to find a defendant whoenrolls in but fails to complete sex offender treatment inwillful and substantial violation of probation.” Adams v.State, 979 So.2d 921 (Fla. 2008).

(4) The defendant argued that the trial court improperly revokedhis probation for not completing or remaining “in the OrlandoPRC, because his probation order neither specified a timeperiod in which to complete the condition nor limited him toa certain number of attempts to complete it.” Based onLawson v. State, 969 So.2d 222, 236 (Fla.2007), the courtaffirmed. There the Supreme Court stated: “‘[A] probationorder that requires the completion of a drug treatmentprogram but fails to specify time parameters should beread in a commonsense manner. Accordingly, aprobationer who has been given the privilege of beingplaced on probation, in lieu of serving jail time, is put onadequate notice that the treatment program should beundertaken at the beginning of the probationary periodand that, if he or she is discharged for nonattendance, heor she may not have another chance to complete theprogram.’ Id. at 235.” Reading the probation order here in acommonsense manner, it was clear that “Martinez was onadequate notice that he was required to attend andsuccessfully complete the Orlando PRC and that his probationwould be revoked if he failed to comply. This was notMartinez’s first failure to obtain court-ordered drug treatment.Under the unique factual circumstances of Martinez’s case,we conclude that the trial court did not abuse its discretion inrevoking Martinez’s probation on this basis.” Martinez v.State, 980 So.2d 1245 (Fla. 2d DCA 2008).

(5) The court did not abuse its discretion in revoking defendant’s

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probation for failure to complete sex offender treatment eventhough the court did not specify when it had to be completedor how many attempts he would be given. “Adams, who hasa long criminal history, pled guilty to lewd and lasciviousexhibition and molestation on an eleven-year-old child andwas sentenced to community control and probation. Withinonly thirty-seven days of his sentencing, his probation officerfiled two affidavits of violation. The second resulted inrevocation of his community control and probation. Adamswas then placed on six years of sex offender probation withthe special condition that he serve 364 days in jail. After hisrelease from jail, Adams was informed of the programrequirements. Yet he attended only one of his scheduledgroup sex offender treatment sessions before beingterminated for two consecutive unexcused absences. [T]hetrial court found Adams’s violation was both willful andsubstantial. It was willful because he had been informed thattwo successive unexcused absences would result intermination, and he had the ability to pay for the sessions. Itwas substantial because of the importance of sex offendertreatment to the offender and to society. The trial court alsostressed that Adams had demonstrated a pattern of probationviolations.... Although Adams claims he was unable to pay forthe program, he never communicated such a concern to theprogram’s director, and he was not terminated because of hisfailure to pay. Rather ... he was terminated for twoconsecutive unexcused absences. (Citation omitted) Theprogram’s director testified that he does not terminate anyonefor inability to pay. Adams raised his ability to pay as an issueonly when he was arrested for the violation. The trial courtrejected his explanation. The court instead concluded that, asAdams testified, even after helping his mother pay expenses,he still had sufficient income to pay for treatment. The trialcourt was well within its discretion in rejecting his excuse asunpersuasive.... In sum, the trial court imposed areasonable treatment condition, Adams was aware of theprogram requirements, and he had a reasonableopportunity to attend treatment. He simply failed to do so.Adams’s pattern of violating community control andprobation also supports the trial court's findings. Nor didthe trial court abuse its discretion in finding that theviolation was substantial. As the trial court found, sexoffender probation and the treatment programs are

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essential not only to Adams’s well-being andrehabilitation, but also to the protection of society and anypotential future victims. Finally, although Adams expressedwillingness to reenroll in the program, whether he should begiven such an opportunity is within the trial court’sdiscretion.” Adams v. State, 979 So.2d 921 (Fla. 2008).

(6) The defendant was accused of violating her probation byfailing to attend a required rehabilitation program. Sheattended an afternoon session and was told to return in theevening, but the written material she had been given indicatedthat the evening session was for the parents and she was toldthat they would not be able to attend. Thus, the defendant didnot go to that session. The next day she attended the programand was told by the director that she was to have been at theevening session. She explained her confusion. While thedirector was skeptical, he acknowledged that the defendantmay have misunderstood. The director said at the violationhearing that he would not terminate her from the program.Both the state and the defense urged the court not to revokethe defendant's probation; nevertheless, the trial judge did soand sentenced her to prison. On appeal, the Court found thatthe violation was insubstantial under these circumstances.Rathburn v. State, 353 So.2d 902 (Fla. 4th DCA 1977).

(7) It was a condition of the defendant’s probation that hecomplete a mentally disordered sex offender program. He wasaccused of violating that condition by being unsuccessfullyterminated from the program in which he was enrolled. Theevidence showed: (1) the defendant admitted that he had beenreleased from the program but requested a 30 day continuanceto enter another sex offender program; (2) he explained thathe had a conflict with the director of the program; (3) thedirector of the program provided a letter indicating a willing-ness to let the defendant back into the program, although hehad doubts about the chances of success; (4) the defendantwas willing to cooperate if reaccepted. The trial judgerevoked his probation. On appeal, the Court reversed becausethe evidence was insufficient to show a willful andsubstantial violation in that: (1) the defendant expressed awillingness to complete some form of sex offendercounseling; (2) the probation order did not specify theperiod within which the defendant was to comply, how

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many chances he would be given to obtain success, orwhen, within the term of probation the condition had tobe completed. Because the probation order was soinspecific and the defendant expressed a willingness tocomply, it was error to revoke his probation. Young v.State, 566 So.2d 69 (Fla. 2d DCA 1990). See also Williamsv. State, 787 So.2d 180 (Fla. 2d DCA 2001); Butler v. State,775 So.2d 320 (Fla. 2d DCA 2000); Ingram v. State, 754So.2d 802 (Fla. 2d DCA 2000).

(8) The defendant was not properly violated for failing to“attend sex offender counseling.” The evidence did notsupport a willful and substantial violation. He testified thathe had attended for four years and had only one excusedabsence. He said he participated as best he could but hisparticipation was hampered because he was uncomfortablewith the issues raised in the group. The program directortestified that the defendant had been terminated from theprogram because, while the defendant attended, he didnot really participate in the group therapy. The directoragreed that the defendant had been placed in a group ofpeople who had committed more serious offenses. Slovak v.State, 862 So.2d 875 (Fla. 2d DCA 2003). See also Lawsonv. State, 845 So.2d 349 (Fla. 2d DCA 2003).

(9) The defendant was violated for not completing sex offenderprobation. The court affirmed, but remanded for entry of awritten order. “A special condition of his probation was thathe ‘complete successfully on the first try anyrecommended treatment.’” He was terminated from theprogram because he was disruptive, attended but would notparticipate, and tried to convince others that they wereinnocent. “We conclude that Slovak is distinguishable becausein that case the condition of probation was that Slovak attendcounseling, which he did; here, Oertel’s condition is tocomplete counseling, which he did not. We also find Archerto be distinguishable because in that case the probationer‘adamantly maintained at the hearing that he had no sexualproblem and expressed no willingness to participate in atreatment program or otherwise comply with the condition ofprobation.’ Here, Oertel testified that he was open totreatment and willing to continue treatment with anotherprovider. Moreover, in Archer, the psychologist testified that

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she did not believe there was any therapy that would bebeneficial. Here, Dr. Imhof testified that other more holistictreatment approaches would be better suited for Oertel.However, like Archer and unlike Bell, Bauman testified thatshe did not require Oertel to admit his guilt.... Based on thetestimony adduced at the hearing in this case, we mustaffirm the trial court’s finding that Oertel willfully andsubstantially violated his probation.” Oertel v. State, 82So.3d 152 (Fla. 4th DCA 2012).

(10) Defendant’s probation was revoked for violating condition13, which required that he “‘participate in Psychological andSexual Abuse counseling as directed by your ProbationOfficer.’” The defendant was discharged from theprogram solely because he was arrested for a new chargeof prowling, which was dropped at the VOP hearing. Hewas unable to get into another program. The trial judgefound him guilty because he only had three months left tocomplete the program. On appeal, the court reversedbecause the defendant was only required to participate inthe program, not complete it. “[T]he condition requires aprobationer to make a genuine effort to attend andparticipate in the program, and to use the tools providedby the therapy program.” He did make such an effort.“Violation of probation cases adhere to strict due processrequirements attendant to criminal cases. A probationer mustbe violated for the reasons stated in the affidavit filed, and thereasons must be established by substantial competentevidence at the hearing. Further, the violation must mirrorthe language of the condition of probation allegedlyviolated. In this case, the affidavit alleged a violation ofcondition 13 “for not successfully completing the sexoffender treatment program.” But as noted above,condition 13 does not require “successfulcompletion”-only “participation.” Lack of adequateparticipation was not alleged and the record establishedthat Stanley was not dropped because of his inadequateparticipation in the sex offender therapy program. Weconclude that the evidence in this record does not support thefinding that Stanley willfully and substantially violatedcondition 13 of his term of probation.” Stanley v. State, 922So.2d 411( Fla. 5th DCA 2006).

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(11) The defendant was on sex offender probation, and probationwas revoked for failure to actively participate in sex offendertreatment and to relay HIV test results to the victim.Defendant argued that the conduct was not willful becauseneither the time for completion nor the number of attemptswere specified and he expressed a willingness to comply.“[I]f the trial court does not announce time parametersfor compliance with sex offender conditions of probationat sentencing, the defendant is not at liberty to pick thetime of compliance within the probationary period.Rather, the defendant must undertake compliance witheach condition as soon as he or she is placed on probation.Consequently, willful failure to actively participate in orcomplete sex offender treatment, or provide test results to thevictim, does not necessarily preclude revocation simplybecause the number of attempts at compliance were notspecified or because the defendant is willing to undertakeanother attempt at compliance within the probationary period.If immediate initial attempts are unsuccessful and thedefendant expresses a willingness to try again, other chancesat compliance are a matter that should be left to the sounddiscretion of the trial court.” This decision was based onperceived legislative intent. The involved conditions weremandatory and the court drew a distinction betweenmandatory conditions and cases dealing with specialconditions. Woodson v. State, 864 So.2d 512 (Fla. 5thDCA), app. dismissed, 889 So.2d 823 (Fla. 2004)(court ruledthat on closer examination there was no conflict).

(12) The defendant entered into a plea agreement and as acondition of drug offender probation was ordered to completea drug treatment program. “Lawson enrolled in a treatmentprogram very soon after sentencing. The rules and regulationsof this program, which were explained to Lawson before hisfirst session, provide that an individual is subject to dischargeafter three absences. After missing nine sessions, Lawsonwas terminated from the program. In an attempt to workwith Lawson and his alleged transportation problems, theprogram administrator reinstated Lawson to the program withthe understanding that he miss no more sessions. However,Lawson again missed a class and was discharged from theprogram.” An affidavit of violation was filed. When thecourt asked him why he missed so many classes, he said “I

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have no idea, sir. No transportation.” The trial judge didnot find this credible and revoked his probation. The courtaffirmed. The court rejected the defense argument that hecould not be violated because he had until the end of theterm to complete the condition. “We agree with JusticePariente’s observations that ‘[b]ecause each treatment plan isindividualized, it is not always realistic for the trial judge tospecify time parameters for completion at the time ofsentencing.’ Woodson v. State, 889 So.2d 823, 824 (Fla.2004)(Pariente, C.J ., concurring). Although Justice Pariente wasreferring to treatment plans for sex offender probation,the treatment plans for drug offender probation are noless individualized.” The court disagreed with those casesthat, despite this problem, hold that the defendant cannot beviolated if no time for completion is specified. “The courtsreason that if the sentencing court does not set a time framefor completion or specifically limit the number of attempts atcompliance, defendants do not have sufficient notice of whatis required in order to comply and, therefore, they cannotwillfully violate. While we certainly agree that defendantsshould receive fair notice of conduct that may result in aviolation so that they may guide their actions accordingly, theconcept of fair notice does not require the mostcomprehensive, inclusive, and detailed notice conceivable.We adopt the view that fair notice can be satisfied byconditions of probation that provide reasonableindividuals of common intelligence the basis to know andunderstand its meaning. (Citations omitted) Under thisview, conditions of probation do not have to be precise tothe point of obtrusiveness in order to afford fair notice tothe probationer and, therefore, it is not necessary for thesentencing court to catalogue each and every detail orcircumstance that may form the basis of a violation. Inessence, conditions of probation should be written and readwith a measure of common sense so that the fair noticerequirement does not provide refuge for defendants whodeliberately turn a blind eye to, or eagerly professignorance of, the obvious consequences of their actions orinactions....” Reading this condition with common sense, “areasonable person of common intelligence wouldunderstand that he or she must undertake compliance assoon as probation is ordered. This means that thedefendant must immediately submit to any necessary

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evaluation or testing process and enter the prescribedtreatment program as soon as he or she can be placed intoit.... We believe that the view we adopt comports with theprimary goals of probation, which are to: 1) rehabilitate thecriminal offender so that in the future his or her conduct willmore likely conform to societal standards; 2) protect societyfrom future criminal conduct by the offender; and 3) protectthe rights of crime victims. Woodson v. State, 864 So.2d 512,516 (Fla. 5th DCA), review dismissed, 889 So.2d 823(Fla.2004). As we explained in Woodson: ‘It makes no senseto release the offender into society on a lengthy term ofprobation only to allow the offender the discretion toundertake treatment several years later toward the end of theprobationary period. Releasing a sex offender, untreated, doesnot alleviate the concern that he or she will reoffend andaffords no protection to society. Moreover, a requirement thatprovides additional chances for treatment in the future beforeexpiration of the probationary period after willful failure toactively participate in and complete a sex offender treatmentprogram, simply because the offender expresses a willingnessto comply at a later date, opens the door to mischievousmanipulation by the offender and thwarts all of the goals ofprobation.’ 864 So.2d at 516. We readily acknowledge thatWoodson involved mandatory conditions of sex offenderprobation, but we think the rationale is no less applicableto instances where defendants fail to participate in andcomplete court-ordered treatment programs intended tohelp rehabilitate them and prevent future misconduct....We believe that the argument advanced by Lawson defiescommon sense, defeats the ends of justice, and does little tofurther the goal of rehabilitating offenders so they canconform to the normative standards of behavior demanded bya society of law-abiding citizens. Therefore, we totally rejectit.” The condition “requires the court-ordered treatmentprogram to be started as soon as the defendant can beplaced into the program. Whether more time should begiven to start the program, or more attempts allowed afterinitial failure due to willful noncompliance, are mattersthat should be left to the sound discretion of the trial courtwhen considering an appropriate sanction in revocationproceedings.” The court certified conflict with several casesand certified the question to the Supreme Court as a questionof great public interest. Lawson v. State, 941 So.2d 485 (Fla.

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5th DCA 2006).

(13) It was a condition of defendant’s probation that heparticipate in counseling. He failed to do so andmaintained that he did not need the counseling andwanted to have the requirement eliminated. He wasaccused of violating his probation by not completing thecounseling. The defendant argued that the violation was notwillful or substantial because there was no time limit forcompletion of the counseling and relied on Young v. State,566 So.2d 69 (Fla. 2d DCA 1990). On appeal, the Court heldthat Young did not apply because there the defendant stated awillingness to finish the program. Here the defendant not onlyfailed to indicate such a willingness, but in fact indicatedquite the contrary. “[T]he defendant must express a desireto complete the stated condition of probation.” Archer v.State, 604 So.2d 561 (Fla. 1st DCA 1992). See also Oertel v.State, 82 So.3d 152 (Fla. 4 th DCA 2012); Arias v. State,751 So.2d 184 (Fla. 3d DCA 2000), rev. denied, 767 So.2d453 (Fla. 2000).

(14) “One of the conditions of Mills’ probation was that hecomplete a sex offender treatment program.... At the violationof probation (VOP) hearing, Keth Zimmerman-Hicks, amental health counselor, testified that she terminated Millsfrom the rehabilitation program for multiple reasons,including ‘excessive absenteeism,’ lack of participation andmotivation, and for failure to take responsibility for hisoffending behaviors. According to Hicks, even when Millsdid attend the group sessions, he did not actively participateand did not complete the requisite assignments in violation ofhis ‘contract’ with the program.... Mills did not deny thenumber of unexcused absences he had accumulated or that his‘excuses’ were unacceptable under the contract. In addition,Mills conceded that he had not complied with the program'srequirement that he admit his guilt.... The trial court foundthat Mills had willfully and substantially violated theconditions of his probation by failing to complete his sexoffender treatment program. The court found that theabsences in and of themselves amounted to a willful, materialand substantial violation of Mills’ probation. However, thecourt also deemed Mills’ continuous lack of participation aviolation. In addition, the court refused to accept defense

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counsel’s argument that Mills should not have been made toadmit his guilt during the treatment program when he hadpled no contest to the charges.... Mills argues that the courtdid not have the discretion to, in essence, refuse to honor his‘best interest’ plea by revoking his probation for not admittinghis criminal conduct. However, ‘[a] plea of nolo contendereadmits the facts for the purpose of the pending prosecution’and is the same as a guilty plea insofar as it gives the court thepower to punish. (citations omitted) Furthermore, Mills hasnot moved to withdraw his plea in the trial court and, as theplea ‘remains of record,’ he cannot argue that the punishmentis unjust because he is not guilty.... The Third District hasalso held that a defendant’s refusal to admit his guilt forpurposes of completing a court-ordered treatmentprogram was a willful violation of probation.... Mills didnot express any interest in successfully completing asexual offender program in which he would have to admithis guilt. Successful completion of the program, however,was dependent on such an acknowledgment. Therefore, thecourt did not abuse its discretion in finding a violation. Thecourt also did not abuse its discretion in revoking Mills’probation notwithstanding the absence of a specific timeperiod within which he was to complete the program....Even if the issue had been preserved, Mills’ argumentwould, nonetheless, have failed. ‘Generally, unexcusedabsences from required therapeutic programs constitutewillful violations of probation.’ Marcano v. State, 814 So.2d1174, 1176 (Fla. 4th DCA 2002). Mills argues that becausethe probation order did not specify a time period within whichMills was to complete the sex offender program, his excessiveunexcused absences should not be grounds for revoking hisprobation. For support, he cites O'Neal v. State, 801 So.2d280 (Fla. 4th DCA 2001), Jones v. State, 744 So.2d 537 (Fla.2d DCA 1999), and Salzano v. State, 664 So.2d 23 (Fla. 2dDCA 1995). While the cited cases did involve the lack ofspecificity as to a time period, they are distinguishablebecause, in each, the conduct was not deemed willful, as theappellant had expressed a willingness to complete theprogram after being discharged. Here, Mills made no effort,and demonstrated no willingness to either be reinstatedinto treatment or to participate in a comparableprogram.... Moreover, Mills’ conduct prevented him fromsuccessfully completing the program. Reinstatement would

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have been pointless. See Archer, 604 So.2d at 563. Therefore,the conviction and sentence are affirmed.” Mills v. State, 840So.2d 464 (Fla. 4th DCA 2003).

(15) “Although generally unexcused absence from requiredtherapeutic programs constitute willful violations ofprobation, see Marcano v. State, 814 So.2d 1174, 1176 (Fla.4th DCA 2002), in the instant case the state presentedinsufficient proof of a willful violation. Myers had beenattending his initial sex offender treatment program for oversix years before he was terminated for the two ‘unexcused’absences. But Myers’ probation officer initially gave himpermission to change programs and thus led a probationerwith limited means to spend money on a program whichhe ultimately was not permitted to attend, leaving nofunds for him to attend the required program. Thus, thestate failed to prove a willful and substantial violation ofprobation.” The defendant testified that he was willing toresume treatment. Myers v. State, 931 So.2d 1069 (Fla. 4thDCA 2006).

(16) The defendant was accused of violating his probation by notsubmitting to alcohol evaluation and treatment. The defendantargued that there was still time for him to comply. Onappeal, the court affirmed the violation because there wasnothing in the record indicating a willingness to comply.Monroe v. State, 679 So.2d 50 (Fla. 1st DCA 1996).

(17) The trial judge properly revoked the defendant’s probation forfailure to complete the domestic battery intervention programeven though no time limit was specified. The courtdistinguished this from the situation in Melecio v. State, 662So.2d 408 (Fla. 1st DCA 1995). In that case, the defendantwas ordered to complete an anger management course, but hewas also ordered to maintain his employment. The defendantwas violated for not completing the program. From the verybeginning the defendant in Melecio told the probation officerthat he could not meet the schedule because of his work.There was also time remaining to complete the course. Thesame was true in the case at bar, however, “the time periodwas implicit in other dictates imposed by the order.” Forexample the order required the defendant to contact thedomestic violence intervention program staff within 24 hours

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of being placed on probation. Thus, indicating that thedefendant was to enroll in the 26 week program immediately.The defendant also contracted to complete the program withina certain time. Mitchell v. State, 717 So.2d 609 (Fla. 4thDCA 1998).

(18) Revocation of probation was reversed where the conditionthat the defendant “‘attend and complete’” an angermanagement program specified neither the program northe time for completion. Reigh v. State, 882 So.2d 435 (Fla.4th DCA 2004).

(19) In another case, the court also distinguished the situation inMelecio. In this case, the probation order specified that thedefendant attend three AA meetings a week. The defendantfailed to comply. Thus, this was different from those caseswhere the probation order did not specify when during theprobation the requirement had to be met. As in Melecio, thedefendant maintained that he could not comply because themeetings conflicted with his work, but he said he would onlymiss a couple of meetings. On appeal, the court affirmedbecause: (1) the defendant missed meetings for nearly twomonths, (2) the defendant changed jobs during that timeperiod, and (3) the defendant knew the modificationprocedure. Cunningham v. State, 795 So.2d 219 (Fla. 4thDCA 2001).

(20) It was a condition of defendant’s probation that he submit toevaluation and complete any recommended counseling. Withsuch a condition it is a condition precedent to anyobligation to complete counseling that the defendant havea proper evaluation. Archer v. State, 604 So.2d 561 (Fla.1st DCA 1992).

(21) It was a condition of defendant’s probation that he “submit toPsychosexual counseling as directed by [his] ProbationOfficer.” He was participating in such a program, but wasterminated because he would not admit the charges againsthim, which was a requirement of the program. His probationofficer told him to contact his counselor and successfullycomplete the program. He did not do so. The probation officerfiled an affidavit of violation, alleging that he had violated hisprobation by failing to follow instructions of his p.o. and by

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being terminated from the program for failing to admit theoffense. The trial judge found that the defendant had willfullyviolated his probation. On appeal, the Court reversed because:(1) the condition required only that he submit to thecounseling, not that he successfully complete it, as was thecase in Archer; (2) the probation order did not require that headmit the offense; (3) “[t]hese additional requirementsimposed respectively by Bell’s counselor and probationofficer amounted to an unauthorized and impermissibleupward modification of Bell’s probation conditions, andBell cannot now be penalized for failing to abide bythem.” Bell v. State, 643 So.2d 674 (Fla. 1st DCA 1994).

(22) “After a hearing, the trial court found that defendant willfullyviolated her probation by absconding from Passageways andsentenced defendant to thirty years in prison. As the terms ofdefendant’s probation did not require that she completethe Passageways program, but only that she enter it, thetrial court erred in finding that defendant violated herprobation when she absconded from the program....Requiring that defendant complete the Passageways programconstitutes ‘an unauthorized and impermissible upwardmodification of [defendant's] probation conditions.’ Bellv. State, 643 So.2d 674, 675 (Fla. 1st DCA 1994).Accordingly, defendant’s probation and community controlshould not have been revoked.” Rial v. State, 835 So.2d 291(Fla. 3d DCA 2002).

(23) As a condition of probation the defendant was required to“receive a mental health evaluation and follow anyrecommended treatment as directed” by his communitycontrol officer. There was no statement as to the amount oftime allowed for completion or the number of opportunitiesto comply. The defendant attempted to make an appointment,but failed to do so because he was told the cost and knew thathe could not pay. His probation was violated. On appeal, theCourt reversed because the condition lacked the necessaryspecificity for finding that there was a willful andsubstantial violation. Jones v. State, 611 So.2d 26 (Fla. 1stDCA 1992).

(24) The evidence did not establish that the defendant willfullyfailed to comply with a condition of his probation that he

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submit to a mental health facility “for evaluation andtreatment of diagnosed needs,” where the evidence indicatedthat the mental health facility failed to properly evaluatethe defendant and to develop a suitable program for hisneeds. Yancey v. State, 547 So.2d 1040 (Fla. 1st DCA1989).

(25) It was a condition of the defendant’s probation that he enrollin and participate in a certain substance program. Thedefendant did this, but proved to be a disruptive influence sothat he was removed from the program and he was accused ofviolating the condition of probation. The evidence showedthat: (1) he was a candidate for treatment; (2) he was willingto receive treatment; (3) his disruptive behavior was amanifestation of antisocial behavior related to the drug abuseproblem for which he needed treatment. On appeal, the Courtruled that under these circumstances his behavior did notconstitute a willful and substantial refusal to participate in theprogram. “If this program does not in fact provide asuitable setting for treating his problems, it necessarilyfollows that his inability to properly conform to itsrequirements cannot be treated as a willful refusal toparticipate.... [T]he general provisions of condition one inthis case lack the specifics required to warrant a findingof willful and substantial violation under thecircumstances.” Gibbs v. State, 609 So.2d 76 (Fla. 1st DCA1992).

(26) One missed counseling session does not constitute a willfuland substantial noncompliance with a condition of probation.Washington v. State, 667 So.2d 255 (Fla. 1st DCA 1995).[Result may have been different in light of the decision inCarter prohibiting per se rules.]

(27) The defendant claimed that he had attended counselingsessions even though the evidence showed that they werecanceled. The defendant claimed that violating him for notattending the sessions was improper because he was in thesame position as the defendant in Young v. State, 566 So.2d69 (Fla. 2d DCA 1990). There the defendant had beendismissed from a sex offender program, but he had expresseda willingness to enter another sexual offender program.The court found that there was no willful violation. There was

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no evidence that he had returned to his therapist after themeetings were canceled and requested alternate treatment. Ifhe had done so the case would have been like Young. Thatcase “is based on the assumption that the defendant mustexpress a desire to complete the stated condition ofprobation.” In this case the defendant took the position thathe no longer needed treatment. This case was more likeArcher v. State, 604 So.2d 561, 563-64 (Fla. 1st DCA 1992),“where the trial court’s finding that the defendant willfullyand substantially violated probation was affirmed in light ofevidence that defendant maintained he had no sexual problemand was not in need of treatment.” Miller v. State, 661 So.2d353 (Fla. 4th DCA 1995).

(28) The defendant was found guilty of indirect criminal contemptfor violating a domestic violence injunction by beingterminated from a batterer’s intervention program for “failureto pay the program fee or to provide proof of communityservice hours.” Participants who were unable to pay wereallowed to complete community service hours in lieu ofpaying the fee. The defendant had that option. The defendantgave good reasons for why he was unable to pay and why hecould not complete the community service. “Hunter assertedthat he did not have a problem with attending the classbut he did not have money to pay for it and he was toosick to work.” The court concluded that the evidence wasinsufficient to establish that the defendant hadintentionally violated the injunction. “Hunterdemonstrated a willingness to attend the required classes,and his indigency and disability status were undisputed.”In the opinion, the court pointed out that if the defendanthad been accused of violating probation, he could nothave been convicted on such evidence. Hunter v. State,855 So.2d 677 (Fla. 2d DCA 2003).

(29) The failure to attend G.E.D. classes alone is sufficient torevoke probation. That coupled with failure to report wassufficient to satisfy the court's conclusion that the defendantviolated his probation. Johnson v. State, 667 So.2d 475 (Fla.3d DCA 1996).

(30) Defendant could not be violated for not completingcounseling where the director of the program refused to

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let him in because he had twice been admitted to theprogram. Talley v. State, 708 So.2d 333 (Fla. 4th DCA1998).

(31) Trial judge could find that two unexcused absences from atreatment program constituted a material violation. Rawlingsv. State, 711 So.2d 137 (Fla. 5th DCA 1998).

(32) The defendant missed two sessions of sex offender counselingbut he had not been terminated from the program or otherwisestopped attending the sessions. He had been at the hospitaland the dentists. The trial judge found a violation. On appeal,the court reversed. “Reed’s absence from a few sessions,without more, does not give rise to a willful andsubstantial violation of probation.” Reed v. State, 865So.2d 644 (Fla. 2d DCA 2004). [Result may have beendifferent in light of the decision in Carter prohibiting perse rules.]

(33) The judge ordered the defendant to attend counseling at acertain location. The probation officer said that the defendantshould go to a different location closer to his home. Thedefendant did not complete either program. Thus, helacked standing to raise the alleged improper change bythe probation officer. Rawlings v. State, 711 So.2d 137(Fla. 5th DCA 1998).

(34) The defendant was ordered by the court to “undergo apsychological evaluation and successfully complete anytreatment program required.” In the fourth year of probationthe therapist ordered the defendant to undergo random drugtesting. Those results were positive for drugs. He was foundguilty of violating his probation. On appeal, the court reversedbecause the probation order did not order such testing andhis treatment for sex offenses did not logicallycontemplate such tests. Santiago v. State, 722 So.2d 950(Fla. 4th DCA 1998).

(35) The defendant was successfully completing a program, but hehad not used his right name. The program director andcounselor told him that his father had advised his communitycontrol officer that he had lied. At first, the defendant lied andthen admitted his lie. He believed he was going to be arrested

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because of them, but he did not want that to happen in frontof everyone in the program. So he walked down the road towait to be arrested. He was violated for leaving his approvedresidence without permission and not completing hisprogram. On appeal, the court reversed because the evidenceindicated that he did not leave “for the purpose ofabsconding or leaving the treatment program, orotherwise violating the conditions of his communitycontrol.” That was a misunderstanding and thedefendant’s “sole intent was to remove himself from viewto avoid the embarrassment of an arrest in the presence ofthe other program participants.” Padelt v. State, 793So.2d 30 (Fla. 2d DCA 2001).

(36) “[W]e hold that the trial court erred by finding that [thedefendant] willfully and substantially violated conditionnumber fourteen by failing to complete the batterer’sintervention program. Probation cannot be revoked for failingto attend a required program absent a showing that the failureto attend was a product of a knowing and willful act bythe defendant, and not merely the result of negligence orineptitude. See Stevens v. State, 599 So.2d 254, 255 (Fla. 3dDCA 1992). Here, the record shows that Buckins had not yetenrolled in the batterers intervention program because he waswaiting for the court to rule on his request for modification tosubstitute the CARP anger management program in its place.It also shows that the CARP program and the batterersprogram are comparable. Because Buckins completed asimilar program to what was required by the terms of hisprobation, and because his delaying action to enroll in thebatterers program appears to have been the result ofnegligence, we hold that he did not willfully orsubstantially violate condition number fourteen.” Buckinsv. State, 789 So.2d 1184 (Fla. 4th DCA 2001).

(37) The defendant was required to go to counseling. Hiscounselor required that the defendant comply with certainrules, including a prohibition against sexual activity with his“family members.” The defendant had a relationship with hisadult step daughter. When his counselor found out about thatactivity, he terminated the defendant from the program. Thedefendant enrolled in another program. His probation wasrevoked for violating the counselor’s rule. On appeal, the

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court reversed. “In this case, Rothery’s condition ofprobation did not expressly require that he abide by anytreatment rules. Further, the rule which Rothery violateddid not clearly apply to his stepdaughter.... It would bepatently unfair to penalize a defendant for failing tofollow a rule of a third party, the violation of whichsubjects him to revocation of his probation, where thethird party does not clearly articulate the rule to thedefendant.” Rothery v. State, 757 So.2d 1256 (Fla. 5thDCA 2000).

(38) The defendant appealed revocation of probation based onhis failure to complete a sex offender treatment programat his own expense. The defendant was instructed on theconditions of his sex offender probation. The defendant toldhis probation officer he was working and going to counseling.He never told his p.o. that he could not afford the costs ofcounseling. When he was arrested he said he did not have themoney and did not go. The program director said he told thedefendant about the fees and that if he could not afford themhe would work with him. The defendant told him he hadincome. The defendant attended the first session. Thedefendant called the program director and left a message thathe had to work that day and would be unable to attend. Thedefendant missed the next two sessions without calling.The program director terminated the defendant. Thedefendant never told the program director that he could notafford the program fees. They do not terminate people forinability to pay and the defendant was told that. When askedwhy he did not complete the program, the defendant testified“that he did not feel he had the money and he was unsure howhe would have been treated. Adams stated at the revocationof probation hearing that he wanted to continue with thetreatment program and probation.... We clarify at theoutset that the trial court revoked Adams’s probationbased upon failure to attend and complete sex offendertreatment, not failure to pay. Adams merely cited inabilityto pay as a reason why he did not attend treatment. Thisdistinction separates this case from those in which probationis revoked for failure to pay court-ordered costs. (Citationomitted) .... We distinguish the facts of this case from therecent opinion of this court in Myers v. State, 931 So.2d 1069(Fla. 4th DCA 2006).... Myers is unique in that the probation

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officer essentially led Myers to violate his probation. UnlikeMyers, the present case involved no confusion or transferback and forth between two different treatmentprograms. There was competent testimony that Adamshad the resources to pay for his treatment, was aware hewould be accommodated if he could not pay, and simplyfailed to attend. There was sufficient evidence for the trialcourt to find by a preponderance of the evidence that Adamswillfully and substantially violated his probation.” Adams v.State, 946 So.2d 583 (Fla. 4th DCA 2006).

(39) The defendant’s probation was revoked for absconding fromthe PAR program. The defendant argued that the evidencewas based solely on hearsay. “The director of the program,who testified, had personal knowledge that Lewis was notat the program after a certain date.” Lewis v. State, 964So.2d 766 (Fla. 2d DCA 2007).

(40) “We review the revocation order to determine whethercompetent substantial evidence supports the finding thatCheeves willfully, substantially violated the specialcondition.... The circumstances accepted by the trial courtindicate that Cheeves denied full accountability for thecrime that resulted in his being subject to specialcondition 14. His therapist described Cheeves asdisruptive, intransigent, manipulative, and deceptive inthe treatment program. Accordingly, we find no abuse ofdiscretion in the decision to revoke Cheeves’ probation....To the extent that some older district court of appeal decisionsapplied a bright-line rule that a trial court can never find awillful, substantial VOP where the probationer is expelledfrom a required treatment program, the probation order failsto specify how many opportunities must be allowed tocomplete the requirement or when the probationer has tocomplete it, and time remains in the period of probation,Lawson appears to have overruled them. See Lawson, 969So.2d at 232-35. Because a probationer avoids prison as ‘amatter of grace rather than right,’ the trial court’s finding abasis for revocation is entitled to great deference. Lawson,969 So.2d at 229.” Cheeves v. State, 27 So.3d 681 (Fla. 1stDCA 2009).

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C. Principles relating to violations for commission of new crimes.

1. Violation based solely on an allegation of an arrest.

a. Probation may not be revoked simply because the defendant has beenarrested for a new charge.Pearson v. State, 83 So.3d 940 (Fla. 3dDCA 2012); Stevenson v. State, 843 So.2d 1044 (Fla. 2d DCA2003); Manigault v. State, 534 So.2d 856 (Fla. 1st DCA 1988);Lockett v. State, 547 So.2d 1292 (Fla. 5th DCA 1989). This is trueeven if the order makes it a condition that the defendant not bearrested. In Interest of L.S. v. State, 553 So.2d 345 (Fla. 4th DCA1989). See also In the Interest of A.R. v. State, 554 So.2d 640 (Fla.4th DCA 1989).

b. “‘An affidavit upon which a permanent revocation is to be basedmust allege the basic facts concerning the alleged violation, suchas nature, time, and place of occurrence.’ Hines, 358 So.2d at 185.Thus, we hold that the state’s failure to allege appellantcommitted a trespass constituted fundamental error.” Anallegation of arrest was insufficient. Palmer v. State, 603 So.2d535 (Fla. 4th DCA 1992).

c. The defendant was accused of violating his probation by beingarrested for DUI. The defendant objected to any evidence other thanthe fact that the defendant had been arrested. The trial judge allowedother evidence and found that the defendant violated his probation bycommitting the DUI. On appeal, the court receded from its decisionin Palmer and affirmed. “Defendant expressed no doubt at theVOP hearing as to what he was accused of doing to warrantrevocation of his probation. While the VOP charging documentmight be deemed technically deficient in failing to state that hedrove an automobile on the public highways of Florida whileunder the influence of alcohol or drugs in violation of law, it didstate that he was arrested for that offense. As we have alreadysaid, this is not a case in which defendant was charged with beingarrested for one offense while his probation was revoked foranother offense not mentioned in the VOP charge. The VOPcharge was supported by testimony that he was in fact convictedof precisely the offense stated in the VOP charge as the basis forthe arrest. Any error in the charging document was indubitablyharmless. We therefore recede from Palmer and affirmdefendant’s revocation of probation.” Langbaum v. State, 799So.2d 391 (Fla. 4th DCA 2001).

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d. The defendant was accused of violating his probation by committinga new crime. The only evidence was the testimony of the bookingofficer that she received a booking report showing that the defendanthad been arrested. An arrest is insufficient for revocation ofprobation. Rock v. State, 584 So.2d 1110 (Fla. 1st DCA 1991),reversed on other grounds, 605 So.2d 456 (Fla. 1992).

e. Probation cannot be violated based solely on an arrest. Myers v.Florida Parole and Probation Commission 705 So.2d 1000 (Fla.4th DCA 1998); Griffin v. State, 603 So.2d 48 (Fla. 1st DCA 1992).

f. Probation cannot be revoked based solely on an arrest. Green v.State, 620 So.2d 1126 (Fla. 1st DCA 1993).

g. “A probationer’s arrest, without more, will not support arevocation of probation. There must be sufficient evidencepresented to permit a finding that the appellant violated theterms of his probation.” Hall v. State, 677 So.2d 85 (Fla. 2d DCA1996).

h. Proof only that the defendant was arrested for a new crime isinsufficient to violate the defendant’s probation for failure to livein conformity with the law. Thompson v. State, 710 So.2d 80 (Fla.4th DCA 1998); Shaw v. State, 710 So.2d 182 (Fla. 3d DCA 1998).

i. An arrest alone is insufficient for a violation of probation. Gomezv. State, 724 So.2d 1205 (Fla. 2d DCA 1998). See also Sharpston v.State, 895 So.2d 1225 (Fla. 2d DCA 2005). Nelson v. State, 802So.2d 470 (Fla. 2d DCA 2001).

j. “[T]he trial court used an improper standard in revoking Mr.Robinson’s probation based on the new law violations... The affidavitof violation of probation alleged that Mr. Robinson violated ....condition 5 twice for committing the two new law violations ofdriving without a valid driver’s license and driving under theinfluence...” While there was ample evidence of both offensespresented at the revocation hearing, the trial court stated that theissue was whether Mr. Robinson was arrested for the new lawviolations, not whether he was guilty or not guilty of the charges.Accordingly, the trial court found that Mr. Robinson violatedcondition 5 of his probation by ‘being arrested for Driving Underthe Influence and being arrested for No Valid Driver's License.’

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However, it is improper to revoke probation solely on proof thatthe probationer has been arrested.... In this case, it is apparent froma review of the transcript of the revocation hearing that the trial courtdid not merely misspeak when it revoked Mr. Robinson’s probationbased on the fact of his arrest.... The proper standard for finding anew law violation is whether a preponderance of the evidenceestablishes that the probationer committed the charged offenseor offenses. (Citations omitted)” Robinson v. State, 907 So.2d1284 (Fla. 2d DCA 2005). See also Hodges v. State, 920 So.2d 158(Fla. 2d DCA 2006).

2. The defendant cannot be violated based upon the commission of a crimedifferent from the one alleged in the original affidavit. Smith v. State, 502So.2d 77 (Fla. 3d DCA 1987).

a. The affidavit charged the defendant with violating probation bycommitting grand theft of a firearm. The trial judge found him guiltyof violating probation for being in possession of the firearm. “It isevident that the trial court revoked his probation on the theory that asa convicted felon, it was illegal for the defendant to possess afirearm.” On appeal, the court reversed because there was noevidence that the defendant stole the firearm. The court statedthat the State could pursue the violation on the correct grounds.Nadal v. State, 855 So.2d 257 (Fla. 3d DCA 2003).

b. The defendant was accused of violation his probation by “(1) testingpositive for cannabis, and (2) failing to report weekly until he hadobtained gainful employment.” While on probation, the defendantwas charged with possession of cocaine. He pled no contest to thatcharge. The same judge accepted the defendants plea to a VOP basedon the plea to possession of cocaine. “The trial court detrimentallyrelied upon incorrect statements from counsel and was thus under theimpression that the VOP affidavits had been amended to include thenew law violation.” There had been no such amendment. On appeal,the defendant argued that “his due process rights were violated by thetrial court's acceptance of VOP pleas which included a stipulation ofa new law violation that was not contained in the affidavit ofviolation.” The court concluded that it “‘is error for a trial court torevoke probation even for a conceded violation when theprobationer has been charged with a different violationaltogether.’ N.L. v. State, 825 So.2d 509, 510 (Fla. 1st DCA 2002).”(citations omitted). This case did not involve a situation where thedefendant was convicted of a lesser offense to the one alleged in

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the affidavit. Under those circumstances, revocation ispermissible. The fact that the defendant “stipulated to a plea thathe entered the previous day before the same presiding judge” didnot constitute invited error. Thus, the court reversed but heldthat “[t]he State may again proceed on the original affidavit ofviolation, or may seek to amend the affidavit if such isappropriate.” Ray v. State, 855 So.2d 1260 (Fla. 4th DCA 2003).

c. “The trial court erred in ruling that Appellant violated a condition ofhis probation on the basis of its finding, by a preponderance of theevidence, that Appellant ‘has committed at least one felony.’ Thetrial court did not state which of the three charges it foundAppellant to have committed, or whether it was some other,uncharged felony. Probation cannot be revoked on a finding that aprobationer committed an uncharged felony. Ray v. State, 855 So.2d1260 (Fla. 4th DCA 2003). And, even if the trial court intended torefer to one of the charged felonies, we believe the trial courtmust specify which felony it suspected Appellant had committed.This is a logical application of the established rule that reasons forviolation must be explicitly stated, set forth in McAffee v. State, 779So.2d 299, 299 (Fla. 2d DCA 1999).” Goss v. State, 911 So.2d 183(Fla. 1st DCA 2005).

3. There appears to be a conflict as to whether the violation can be based on alesser included offense of the one charged in the affidavit. Smith v. State,502 So.2d 77 (Fla. 3d DCA 1987), appears to prohibit this procedure, but inanother case, where the defendant was accused of violating his communitycontrol by committing the offense of lewd and lascivious assault on a minor,the Court held that his community control could be revoked based upon aplea of guilty to the lesser included offense of battery. Gilmore v. State, 523So.2d 1244 (Fla. 2d DCA 1988). See also Ray v. State, 855 So.2d 1260 (Fla.4th DCA 2003); Harrington v. State, 570 So.2d 1140 (Fla. 4th DCA 1990);Moser v. State, 523 So.2d 783 (Fla. 5th DCA 1988) [cases holding thatviolation cannot be for offense not alleged in the affidavit].

4. It is improper to revoke probation based on charges that were dismissed asa result of suppression of the evidence. Pendergrass v. State, 601 So.2d1250 (Fla. 2d DCA 1992); Graddy v. State, 517 So.2d 772 (Fla. 2d DCA1988)(State conceded error in probation revocation based on dismissedcharges). See also Szabo v. State, 798 So.2d 912 (Fla. 2d DCA2001)(Where defendant accused of violating probation by committingDUI and county judge suppressed the evidence in the DUI because thestop was unlawful, the circuit judge should have dismissed the VOP.)

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5. A new charge can constitute the basis for a violation of probation evenif the State nolle prosses the new charge. Swilley v. State, 781 So.2d 458(Fla. 2d DCA 2001); State v. Brown, 762 So.2d 589 (Fla. 4th DCA 2000);State v. Jenkins, 762 So.2d 535 (Fla. 4th DCA 2000).

6. Proof based on plea to new charge or confession.

a. The court may find a violation of probation based solely on a plea ofguilty to the charge which is the basis for the alleged violation.Kilpatrick v. State, 516 So.2d 56 (Fla. 2d DCA 1987).

b. Probation may be revoked based solely on the defendant’sconfession to a new crime to a police officer. Waring v. State, 504So.2d 787 (Fla. 2d DCA 1987). See also McPherson v. State, 530So.2d 1095 (Fla. 1st DCA 1988).

c. Probation was properly revoked based on a plea of nolo contendereto indecent assault of a child under the age of 16 years. Smith v.State, 962 So.2d 380 (Fla. 4th DCA 2007).

d. A nolo or a guilty plea is sufficient for revocation, but anuncounseled plea for which there was no waiver of counsel is notsufficient. The evidence must establish that the new charge carried apenalty of at least six months in jail or that the defendant wassentenced to at least one day in jail. The defendant must also swearthat he did not have counsel and that he did not waive the rightbefore any burden shifts to the state. State v. Rock, 605 So.2d 456(Fla. 1992).

e. The defendant’s probation could be revoked where he wascharged with committing a new crime in another state and headmitted conviction on that crime. Underwood v. State, 947 So.2d1273 (Fla. 5th DCA 2007).

f. In order for the burden to shift to the state to show a waiver thedefendant must meet the initial burden of showing entitlement tocounsel. In order to meet that burden the defendant “must assertunder oath: (1) that the offense involved more than six months ofimprisonment or that the defendant was actually subjected to aterm of imprisonment; (2) that the defendant was indigent andthus, entitled to court-appointed counsel; (3) counsel was notappointed; and (4) the right to counsel was not waived.” When

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this burden is met the state must show either that the defendantwas provided with counsel or waived that right. A waiver cannotbe presumed from a silent record. State v. Rock, supra; State v.Beach, 592 So.2d 237 (Fla. 1992). See also Johnson v. State, 952So.2d 1254 (Fla. 4th DCA 2007).

g. The defendant was on probation. He was charged with violatingprobation by committing three first degree misdemeanors. He hadentered an uncounseled no contest plea to the misdemeanorcharges. The court ruled that the trial judge improperly relied onthose convictions. The defendant “testified that the specialmagistrate who took his plea did not inform him of his right tocounsel, that he had not heard a videotape advising him of hisrights, and did not know that he had the right to counsel at thatproceeding. He did not complete an indigency affidavit and wasnot asked to waive his right to counsel.” By virtue of a prior casewhere the defendant had been appointed counsel, the defendant wasaware of his right to counsel. In rejecting the defense position the trialcourt noted that the defendant did not take affirmative action to eitherrequest counsel or assert his rights that he was aware of by his priorcontact with the system.... “Here, the defendant established, and thetrial court found, that he was subjected to an offense punishable bymore than six months imprisonment, was indigent, and was entitledto counsel. And, the defendant testified that he neither signed awaiver of counsel nor told the special magistrate that he waived hisright to counsel. During the violation hearing, the State and thetrial court mistakenly focused on the defendant’s priorexperience with the criminal justice system to establishknowledge of his rights and to require some affirmative act on hispart to request counsel. Neither Beach nor Angel support theanalysis undertaken by the trial court in this case. Once thedefendant met his initial burden, that burden shifted to the Stateto prove that either counsel was provided or that the defendantvalidly waived his right to counsel. The State failed to establisheither.” Johnson v. State, 952 So.2d 1254 (Fla. 4th DCA 2007).

7. Proof based on other evidence.

a. A certified copy of a conviction for an offense which forms thebasis for a violation is sufficient to prove the violation for failureto “remain at liberty without violating the law.” Even though theconviction came after the expiration of the probationary term theoffense could still be used as a basis for the violation as long as the

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offense occurred during the term of probation because it is theunlawful act that constitutes the violation not the conviction. Infact there need not even be a conviction, only sufficient proof ofthe unlawful act. McPherson v. State, 530 So.2d 1095 (Fla. 1stDCA 1988). See also Cartwright v. State, 565 So.2d 784 (Fla. 5thDCA 1990) [On sufficiency of proof by certified copy.]

b. “Boone ... violated his probation by breaking into a home andsexually battering the occupant. At Boone’s violation of probationproceeding in this case, the State relied solely on certified copies ofjudgments of conviction on charges of burglary of a dwelling (withan assault) and sexual battery, which bear the seal of the clerk ofcourt from Jefferson County, Florida. Contrary to Boone’sargument, the certified judgments provide a sufficientevidentiary basis to support the trial courts’ finding that Boonecommitted these subsequent crimes while on probation. (Citationsomitted)” Boone v. State, 967 So.2d 999 (Fla. 5th DCA 2007).

c. If a violation of probation is proven solely by a conviction on thecharge which constitutes the basis for the violation and theconviction is reversed, the revocation must also be reversed wherethe trial judge did not determine whether the violation had beenproven by a preponderance of the evidence without regard to the juryverdict on the new charge. On remand, the court should conduct anew vop hearing. On remand , the State can seek revocation based onthe same circumstances as long as the period of supervision has notexpired. Humbert v. State, 933 So.2d 726 (Fla. 2d DCA 2006).

d. Probation may not be revoked based solely on hearsay. In this casethe defendant was charged with violating his probation by committinga robbery. The only evidence that was presented was the testimony ofthe detective who stated that the defendant was arrested for armedrobbery pursuant to a warrant. The officer said he prepared theaffidavit for the warrant based upon the statements of the robberyvictim who described the offense and identified the defendant, whowas known to the victim, as the perpetrator. The defendant did notcross-examine the officer, deny his involvement in the offense orpresent any evidence concerning the matter. On appeal, the courtheld that the detective’s testimony, the fact that a warrant hadbeen issued based on probable cause, and the fact that thedefendant did nothing to contest or dispute the charge constitutedsufficient evidence for revocation of probation. Manigault v.State, 534 So.2d 856 (Fla. 1st DCA 1988).

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e. It is not necessary to have a conviction because it is the conductthat constitutes the violation. Maselli v. State, 446 So.2d 1079 (Fla.1984); Bernhardt v. State, 288 So.2d 490, 501 (Fla. 1974);McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA 1988).

f. The defendant was accused of violating his probation by driving ona suspended license. “At the revocation hearing, the State relied on ...conviction for driving while license suspended/knowingly. Thedefendant claimed he possessed a valid business purposes license andwas on his way to work when he was stopped. The trial court ruledthat given the Hillsborough County driving while licensesuspended/knowingly conviction, a willful and substantial violationof probation had been established. The court announced ‘it wouldseem to me, it’s res judicata at this point.’ The defendant had entereda no contest plea to that new charge in county court. “A convictionentered upon a nolo contendere plea, standing alone, canconstitute a sufficient basis upon which to revoke probation.Maselli v. State, 446 So.2d 1079 (Fla.1984).... However, in thiscase, the trial court erred in announcing that the defendant’s noloplea in the Hillsborough County driving while licensesuspended/knowingly prosecution was binding and conclusive onthe issue of whether the defendant was in fact guilty of thatcharge. The defendant denied the charge at the revocation hearingand the court was not precluded from determining that the defendantwas not, in fact, guilty of the offense.” Grizzard v. State, 881 So.2d673 (Fla. 5th DCA 2004).

g. “While on probation, Ms. Hodges was arrested for driving with asuspended license and attaching tag not assigned. Ms. Hodgespleaded no contest to the driving with a suspended licenseviolation, and the trial court withheld an adjudication of guilt onthe new charge.... At the hearing, defense counsel attempted to arguethat although Ms. Hodges had been arrested and pleaded no contestto the new law violation, his client ‘was not guilty of that offense.’”The trial court would not allow the defense counsel to make thatargument and found the defendant guilty based on the arrest.... Ms.Hodges argues that the trial court erred by treating the no contest pleaas res judicata in the probation revocation proceedings and that beforeit revoked her probation and adjudicated her guilty of grand theft, thetrial court failed to give her an opportunity to be heard on whether thenew law violation was willful and substantial. We agree.... Aprobationer who enters a plea of nolo contendere to a new law

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violation is entitled to an opportunity in a probation revocationproceeding to be heard on whether he or she is guilty of thecharge to which he or she pleaded nolo contendere.” Hodges v.State, 920 So.2d 158 (Fla. 2d DCA 2006). See also Smith v. State,936 So.2d 755 (Fla. 1st DCA 2006).

h. “[A] conviction imposed after a plea of nolo contendere is asufficient basis for the revocation of probation. See Maselli v.State, 446 So.2d 1079, 1080 (Fla.1984). Here, Ms. Hodges was notadjudicated guilty of the new law violation, and she attempted toassert her innocence of the charge during the revocationhearing.” Hodges v. State, 920 So.2d 158 (Fla. 2d DCA 2006).

i. Miller appeals the revocation of his probation, which was based inpart on the trial court’s finding that Miller had committed a newoffense by tampering with a witness. The probation officer, JamesSteere, and Pamela Bocook testified that Miller had repeatedlycontacted Bocook about what her minor granddaughter was going tosay in an investigation of alleged lewd and lascivious conduct. Steerealso testified that others told him about statements Miller made in aneffort to have people get the minor to change her testimony. But noone directly involved in such conversations testified nor was thereany evidence that the defendant made any incriminating statements.“Based on ... statutory definitions, in order to establish that adefendant was tampering with a witness, the State must prove notonly that the defendant had contact with the witness, but alsothat the nature of the contact was such that it would either causeor induce the witness to testify untruthfully or not to testify at all.It is the nature of the contact between the defendant and thevictim that distinguishes the crime of tampering with a witnessfrom the crime of stalking under section 784.048, Florida Statutes(2005).” Here, no one who had heard the defendant say anything totry to get the minor to change her story testified. The probationofficer’s testimony as to what others had told him was hearsay.That was the sole evidence of guilt; therefore, the court reversed.Miller v. State, 958 So.2d 981 (Fla. 2d DCA 2007).

j. “While probation may be revoked based on a combination of hearsayand nonhearsay evidence, J.F. v. State, 889 So.2d 130, 132 (Fla. 4thDCA 2004); Young v. State, 742 So.2d 418 (Fla. 5th DCA 1999),when the State seeks to revoke probation based on thecommission of new offenses, it must present direct, nonhearsayevidence linking the defendant to the commission of the offense

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at issue.... Here, the State presented direct, nonhearsay evidencethat Johnson was found in possession of certain specifiedproperty. However, the State failed to present any nonhearsayevidence that the property found in Johnson’s possession wasrecently stolen. Officers Bergman, Rosario, and Hinsz testified thatthey were told by various individuals that items had been stolen fromtheir vehicles. Officers Rosario and Hinsz also testified that they weretold by other officers that these individuals subsequently identifieditems recovered from Johnson as theirs. This testimony, which isnothing but pure hearsay, was the only evidence presented by theState to establish that the items found in Johnson's possession wererecently stolen.” Johnson v. State, 962 So.2d 394 (Fla. 2d DCA2007).

k. The court relied on Johnson v. State to reverse finding thatdefendant had violated probation by smoking marijuana wherethe only evidence was hearsay testimony. The probation officerwho administered the drug test did not testify and the probationofficer who did testify had no personal knowledge of the results of thetest. Melton v. State, 65 So.3d 96 (Fla. 1st DCA 2011).

l. The defendant’s probation was violated for the commission of variousnew crimes. “On appeal, the defendant contends that the violationsfor possession of drugs and trafficking may not be sustained since theState proved these violations solely on the basis of hearsay. Hefurther contends that there was no evidence of grand theft.... Here,the evidence supporting the violation of probation was acombination of non-hearsay observations and physical evidenceas well as hearsay evidence. A Miami-Dade police officer testifiedthat the defendant was carrying a duffle bag containing not onlya firearm and ammunition but a large quantity of marijuana andcocaine. The officer testified that he received a disposition fromthe chemist stating that the contents had been tested and foundto be cocaine and marijuana. The cocaine, marijuana and firearmseized were entered into evidence. This constituted sufficientevidence to satisfy the conscience of the court that the defendantsubstantially violated his conditions of probation. We find that thetrial court did not abuse its discretion in revoking the defendant’sprobation. As the State essentially concedes, the defendant’sargument that his probation could not be revoked based upon thecharge of grand theft is well taken. For this reason, we remand thecase with instructions to strike that portion of the revocation orderspecifically referring to grand theft.” Blake v. State, 21 So.3d 129

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(Fla. 3d DCA 2009).

m. In a VOP hearing the witness did not remember identifying thedefendant as the perpetrator of the crimes constituting the violation,but he did recognize his handwritten statement. It did not refresh hismemory. “Officer J.G. testified that T.R. verbally identified Robinsonas the perpetrator during a show up shortly after the crime. He furthertestified that T.R. gave a written statement in which he identifiedRobinson as the perpetrator of the crimes.” The evidence of the newcrimes was sufficient because the ‘officer could testify undersection 90.801(2) that a witness to a crime identified the accusedby name, as the perpetrator at the initial investigationimmediately following the incident’. Therefore, the trial courtwas correct in admitting the testimony of Officer J.G. that T.R.made prior out-of-court statements, verbal and written,identifying Robinson as the perpetrator. We agree with the trialcourt: the violation was based on both a ‘hearsay and non hearsayidentification [ ] that Mr. Robinson was the one who fired the gun.’”Robinson v. State, 74 So.3d 570 (Fla. 4th DCA 2011).

n. See additional cases under section on hearsay.

8. Acquittal of new offense.

a. Due process does not require that the defendant be told at the time ofsentencing or in the probation order that if he is violated based on anew crime that the burden on the state is lower and the penaltygreater. It has long been the law that the defendant can beviolated based on a new charge even if he is acquitted of theoffense. And the statutes and rule contemplate an enhancedpunishment. State v. Green, 667 So.2d 959 (Fla. 2d DCA 1996).

b. The standard of proof is different in a revocation hearing than a trial.“The purpose of a revocation hearing is to satisfy the conscience ofthe court about whether the conditions of probation had been violatedand to afford the accused an opportunity to be heard.” Thus, it isirrelevant that the defendant was found not guilty of the chargewhich is the basis for the violation. Recio v. State, 605 So.2d 553(Fla. 3d DCA 1992).

c. The defendant was acquitted of the battery which was the basis forthe violation of probation. “An acquittal in a criminal case does notpreclude the judge from determining that a parole or probation

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violation has occurred based on the same conduct. Russ v. State,313 So.2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46L.Ed.2d 250 (1975); State v. Green, 667 So.2d 959 (Fla. 2d DCA1996); Cavalcante v. Florida Parole and Probation Commission, 414So.2d 658 (Fla. 1st DCA 1982). This is because a criminal casemust be proven beyond a reasonable doubt and a probationviolation need only be proven by a preponderance of theevidence. Adickes v. State, 712 So.2d 815 (Fla. 5th DCA 1998);Crume v. State, 703 So.2d 1216 (Fla. 5th DCA 1997).” Morris v.State, 727 So.2d 975 (Fla. 5th DCA 1999). See also Humbert v.State, 933 So.2d 726 (Fla. 2d DCA 2006); Hill v. State, 890 So.2d485 (Fla. 5th DCA 2004); Louis v. State, 797 So.2d 1281 (Fla. 4thDCA 2001; Lawson v. State, 792 So.2d 603 (Fla. 4th DCA 2001).

d. “Acquittal on the substantive offense is not a collateral estoppel barto revocation of probation on the same offense.” Bones v. State, 764So.2d 888 (Fla. 4th DCA 2000). See also Bond v. State, 839 So.2d853 (Fla. 1st DCA 2003).

e. Dismissal of the new charge for failure to establish a prima faciecase in a bench trial did not bar a subsequent revocation ofcommunity control based on that new charge because the burdenof proofs are different. W.B.S. v. State, 851 So.2d 802 (Fla. 2dDCA 2003).

f. Even if defendant were awarded a new trial and was acquitted ofcharge forming grounds for VOP, that does not mean he wasnecessarily entitled to relief on his VOP. But it would call intodoubt the reliability of the revocation of probation and wouldentitle him to consideration of his postconviction motion on bothcharges. Benjamin v. State, 14 So.3d 288 (Fla. 4th DCA 2009).

9. Proof of drug charges.

a. The defendant was accused of violating his probation by sellingheroin. At the hearing two detectives said that the defendant had soldheroin to them. One detective testified that he had conducted a fieldtest on the substance, but he could not remember the name of the testand he did not know if it was reliable. That detective admitted thatindependent of the test he could not say whether the substance washeroin. The other detective believed the substance was heroin, butrelied solely on the information provided by his partner. There werelab tests performed, but there was nothing indicating that they were

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admitted into evidence. The only other evidence was hearsay as to theconduct of the lab reports and the defendant’s statement that the whitepowder was exceptionally good. There was no evidence that theofficers could, through their training and experience, identify thesubstance independent of the test. The Court held that the evidencewas insufficient to prove a violation of probation. Weaver v. State,543 So.2d 443 (Fla. 3d DCA 1989).

b. The court relied on the decision in Weaver in holding that hearsay(i.e testimony as to what was in a lab report) combined withunqualified officer’s interpretation of field test of urine wasinsufficient to find a violation of probation for possessing cocaine.The officer did not know the name of the field test or how it workedscientifically; he only new if it was positive or negative. Apparently,he had only performed the test once before and it produced a falsepositive and he did not indicate that he was certified to perform thetest. Carter v. State, 82 So.3d 993 (Fla. 1st DCA 2011). See alsoBray v. State, 75 So.3d 749 (Fla. 1st DCA 2011).

c. The court reversed revocation based on new drug charges because theevidence was insufficient. The court noted that a suspicion ofcriminal activity is insufficient and that while evidence of aconviction is not required, there must be proof by the greater weightof the evidence. In this case, the defendant was a back seat passengerand there was a driver and a front seat passenger in the vehicle. Anofficer smelled marijuana while talking to the driver, who explainedthat he had smoked marijuana in the vehicle earlier. The front seatpassenger told the officer that there were drugs in the back of the car,the defendant had hidden something under her seat, and had given herdrug paraphernalia to hide from the police. The officer found cocaineand marijuana in a compartment near the defendant. The court statedthat the State had to prove constructive possession, meaningknowledge of the contraband and the ability to control it. Thecourt concluded that the hearsay was insufficient and mereproximity to drugs was also insufficient. Butera v. State, 58 So.3d940 (Fla. 2d DCA 2011).

d. Revocation of probation for possession of cocaine was valid wherethe nature of the substance was established by a combination ofhearsay and non-hearsay evidence. Mathis v. State, 545 So.2d 483(Fla. 1st DCA 1989).

e. Where the defendant was accused of violating his probation by

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engaging in a conspiracy it was error to revoke probation based onthat allegation where there was no evidence of an agreement or intentto commit the conspiracy. Casana v. State, 546 So.2d 794 (Fla. 3dDCA 1989).

f. Where the defendant was accused of violating his probation by usingcocaine the evidence was insufficient where it consisted solely of alab report, which was hearsay, and the defendant’s statement to hiscommunity control officer that he used cocaine for a long time.Whisler v. State, 569 So.2d 934 (Fla. 1st DCA 1990).

g. Where the defendant was accused of violating his probation by usingdrugs, the evidence was sufficient where it consisted of a lab report,which was introduced through the records custodian, and thepositive results of an in-office “presumptive test.” Branch v.State, 837 So.2d 568 (Fla. 4th DCA 2003).

h. Defendants probation was revoked for using cocaine. Communitycontrol officers took a urine sample, which was sent to anindependent laboratory. The lab issued a written report indicating thatthe urine tested positive for cocaine. Defendant argued that the reportand the testimony of the community control officers “that theurinalysis conducted by them produced a positive result washearsay testimony. Revocation was thereafter ordered on thebasis of this laboratory report and the testimony of thecommunity control officers.” The court held that this evidence washearsay and, while it was admissible, it could not be the sole basis forrevocation. “While both officers testified that they had conductedhundreds of urinalyses, neither testified as to any expertise as tonarcotics or drug testing. Under such circumstances, theirtestimony was hearsay... The case at bar is distinguishable fromBranch v. State, 837 So.2d 568 (Fla. 4th DCA 2003), as there is noindication in that case that the probationer lodged a hearsay objectionto the in-office test conducted by the probation officer. Of course,hearsay which is not subject to an objection is admissible andmay be as probative as other non-hearsay evidence.” (Citationomitted). Bray v. State, 75 So.3d 749 (Fla. 1st DCA 2011).

i. Defendant argues that modification of community control should bereversed because it was based on hearsay from his community controlofficer as to urinalysis and lab test results. The court affirmedbecause Defendant also admitted possessing cocaine. “A court maynot rely only on hearsay evidence to find a violation of community

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control. (Citations omitted). But hearsay may be used in suchproceedings to supplement or explain competent, non-hearsayevidence. (Citation omitted). Here, the officer’s testimony about theresults of the drug test she performed on Rothe is hearsay for sheadmitted on cross-examination that she has no specialized training,expertise or certification in drug testing. See Bray v. State, 75 So.3d749 (Fla. 1st DCA 2011); cf. Terry v. State, 777 So.2d 1093, 1094(Fla. 5th DCA 2001) (probation officer’s testimony about resultsof field drug test sufficient to support finding of violation ofprobation where officer possessed state certification to administersuch tests). The same is true of her testimony about the results of theindependent laboratory test. (Citation omitted). But the trial court’sfinding that Rothe violated community control does not rest only onthis evidence.... [Rothe] acknowledged he had cocaine in his systembut claimed it came from handling bags of cocaine he found strewnaround his yard. Rothe’s admissions constitute sufficientnon-hearsay evidence of cocaine possession allowing the trialcourt to consider and rely on the hearsay test results.” Rothe v.State, 76 So.3d 1010 (Fla. 1st DCA 2011).

j. The defendant was accused of violating probation by failing to makea report and by failing to remain at liberty without violating any law.As to the failure to report, the evidence consisted of the probationsupervisor testifying that: (1) she examined the file and found nomonthly reports; (2) she had no personal knowledge of the case andhad never met the defendant; (3) the affidavit of a prior probationofficer stated that the defendant failed to file any reports after acertain date. Neither the file nor the affidavit were introduced intoevidence. On appeal, the Court held that the evidence was insufficientto convict the defendant of a violation on the failure to report becauseit consisted solely of hearsay. The evidence concerning the otherviolation consisted of the testimony of two officers who said theysaw the defendant with what they believed to be crack cocaineand a crack pipe and that they had arrested the defendant. Thetrial judge found that the evidence was insufficient to establish aviolation on the charge of failing to live at liberty withoutviolating any law. The court held that evidence which had beenfound to be insufficient to support one violation could not beconsidered cumulatively with other legally insufficient evidence tosupport another violation. Mitchell v. State, 607 So.2d 486 (Fla. 3dDCA 1992).

k. It was error to violate the defendant’s probation based on a claim that

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he was in possession of cocaine and a firearm where there was noexpert opinion or lab report establishing that the substance wascocaine and there was no evidence that the defendant had a firearm.Sharpe v. State, 589 So.2d 963 (Fla. 3d DCA 1991).

l. It was a condition of probation that the defendant not use intoxicantsto excess or possess any drugs or narcotics without a prescription.Testimony that the defendant told his probation that he smokedmarijuana was sufficient to prove a violation of this condition.Burse v. State, 724 So.2d 596 (Fla. 2d DCA 1998).

m. The fact that the defendant said he was a crack head was insufficientto prove that he had been in possession of drugs. “Generally, thistype of violation requires proof of a date, location, and actualpossession or use of an illegal drug.” Robinson v. State, 773 So.2d566 (Fla. 2d DCA 2000).

n. The defendant was accused of violating probation by using marijuana.The court found him guilty, but on appeal the court reversed becausethe evidence was insufficient. The sole basis for the finding was theprobation officer’s testimony that the defendant admitted usingmarijuana. The record reflected that the probation officer wasuncertain about this. In fact, the probation officer indicated thatthe defendant may very well have been expressing concern aboutbeing around others who had used marijuana and the effect thatwould have on a drug test. His signed admission did not resolvethe issue. Pettus v. State, 836 So.2d 1070 (Fla. 5th DCA 2003).

o. A positive drug test is insufficient evidence of using intoxicants toexcess, but sufficient evidence of the commission of a new crime.Alston v. State, 646 So.2d 184 (Fla. 1994); Blackshear v. State, 838So.2d 1228 (Fla. 1st DCA 2003). See also McGathey v. State, 71So.3d 224 (Fla. 2d DCA 2011).

p. Court distinguished Alston. There the evidence of intoxication wasjust one positive test, where as here the evidence of takingintoxicants to excess was not just one drug test, but rather theofficer’s observation of conduct showing that the defendant wasintoxicated. Smith v. State, 100 So.3d 253 (Fla. 3d DCA 2012).

q. “The trial judge revoked the defendant’s probation based on threenew offenses-possession of cocaine, felony battery, and tamperingwith a witness. The court reversed as to the possession charge and

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affirmed as to the other charges. “After the arrest [of defendant], aback-up officer searched Butler and located a glass crack pipe in thepocket of the pants Butler was wearing but denied owning. Theofficer who testified at the hearing could not recall what thelaboratory test results on the crack pipe were. No evidence wasintroduced to show the presence of drug residue on the pipe, norwere any drugs found on Butler at the time of his arrest. We aretherefore compelled to reverse and remand for the trial court to strikeits finding of a new offense based on cocaine possession.” Butler v.State, 932 So.2d 306 (Fla. 2d DCA 2006).

r. Defendant was violated for possession of cocaine and possession ofa firearm by a convicted felon. Officers lawfully stopped the truck hewas driving. His wife was also in the truck. Officers lawfullydiscovered cocaine and a handgun behind the bench seat closest to thedriver’s side. When an officer told Defendant he was being arrestedfor drugs found in the vehicle, he spontaneously announced thatthe cocaine weighed over 28 grams; therefore, he would be goingto prison for trafficking. The officers had not yet weighed thecocaine and had not said anything to the defendant about the amount.The defendant’s statement constituted “competent andsubstantial evidence supporting the trial court’s finding that [thedefendant] had knowledge of the cocaine. Because the cocaineand handgun were found together, [the defendant’s] statementalso support[ed] the trial court’s finding that [the defendant] hadknowledge of the presence of the handgun.” Rogan v. State, 934So.2d 593 (Fla. 5th DCA 2006).

s. The court found that the defendant had violated his probation bypossession of marijuana. The court reversed. The defendant was in apick-up truck with another person. The defendant was in the driver’sseat. “Sergeant Cowley approached the passenger side of the vehicleand, through the open passenger window, observed, in plain view, abaggie of marijuana in a small compartment in the dash above theradio. The marijuana was the same distance from both appellant andthe passenger. As the marijuana was not found on appellant's person,this case is one of constructive possession. In order to establishconstructive possession, the State must prove that the defendanthad knowledge of the presence of the drug and the ability toexercise dominion and control over the same.... In the instant case,the State met its burden with respect to the knowledge element of theoffense. The officers testified that appellant was in the driver’s seatof the truck and the marijuana was in a compartment in the dash in

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plain view. The fact that the drugs were openly within appellant’s lineof sight is evidence from which appellant’s knowledge of thepresence of the marijuana may be inferred. (Citation omitted) This,then, brings us to the matter of dominion and control. Knowledge ofthe presence of the drugs and the ability to exercise dominion andcontrol over the drugs are not the same thing.... In the case law,the concepts of ‘dominion’ and ‘control’ involve more than the mereability of the defendant to reach out and touch the item of contraband.Thus, even where drugs are found in plain view, the evidence will beinsufficient to establish constructive possession unless there isevidence that the defendant exercised dominion and control over thedrugs.... [T]his case involves a violation of probation which need onlybe proven by the preponderance, or greater weight, of the evidence.(Citation omitted) We hold, however, that, even under this lesserburden of proof, the evidence at the VOP hearing was insufficientto establish appellant’s dominion and control of the marijuana.Nothing in the evidence before the trial court tied the marijuana toappellant as opposed to the passenger. Indeed, the evidence did notestablish that the pick-up truck was owned or even regularly drivenor used by appellant. (Citation omitted) Because the State’s proof inthis case relies on the theory of constructive, joint possession, weare obliged to reverse since there was no independent evidence ofappellant's dominion and control over the marijuana.” Martoralv. State, 946 So.2d 1240 (Fla. 4th DCA 2007).

t. The defendant’s probation was violated based on a positive druganalysis. The only evidence of this came from the probation officer.“He testified that he received a sheet from a drug program indicatingthat appellant's urine test was positive. This document was neverentered into evidence. The testimony from the probation officerstanding alone will not support a finding of violation. Whisler v.State, 569 So.2d 934 (Fla. 1st DCA 1990); but see Peters v. State,919 So.2d 624 (Fla. 1st DCA 2006); Davis v. State, 562 So.2d 431(Fla. 1st DCA 1990) (holding lab report properly admitted as businessrecord supported finding of violation of probation).”Player v. State,949 So.2d 306 (Fla. 1st DCA 2007).

u. “Isaac argues that the trial court reversibly erred by finding a violationof probation solely on the basis of hearsay evidence. The soletestimony was by the probation officer. No representative of thelaboratory testified. Isaac is correct that the laboratory test inquestion (showing that Isaac was positive for cocaine) washearsay, but in probation violation hearings such tests are

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admissible. (Citation omitted) Isaac is also correct that a violationmay not be sustained solely on the basis of hearsay evidence.(Citation omitted) The trial court’s determination was not basedexclusively on hearsay, however. Isaac’s probation officertestified regarding his other violations, and she also personallyconducted a field test (positive for cocaine and marijuana) beforethe urine sample was sent out for laboratory analysis. Althoughthe laboratory results differed from the probation officer’s testin one respect-the laboratory test was negative for marijuana-thetrial court properly concluded that the testimony was sufficientto support a violation. (Citation omitted)” Isaac v. State, 971 So.2d908 (Fla. 3d DCA 2007). See also Forbes v. State, 38 So.3d 232(Fla. 3d DCA 2010)(evidence was insufficient because the Staterelied exclusively on a lab report to prove possession of cocaine).

v. The defendant was convicted of violating probation by possessingcocaine with intent to sell. The defendant argued that the evidencewas insufficient because the State relied on an officer’sidentification of the involved substance as cocaine. “We hold thata sufficiently experienced officer may opine regarding theidentity of crack cocaine. While marijuana identification bynonscientific means is a settled issue in Florida law, acceptance byFlorida courts of nonscientific crack cocaine identification is aphenomenon of more recent vintage. However, just eight years ago,in Brooks v. State, 762 So.2d 879 (Fla. 2000), the Florida SupremeCourt clearly signaled that in a proper case, a lay person-in Brooks,a drug dealer possessed of ‘specialized knowledge’ within themeaning of section 90.702 of the Florida Evidence Code-mayexpress an opinion in the form of expert testimony regarding theidentity of crack cocaine. Id. at 893 (Citation omitted) The Courtnoted in Brooks that the drug dealer, ‘(1) Michael Johnson[,] was anexperienced crack cocaine dealer, having sold that drug almost everyday for approximately two years; (2) Johnson never sold bad,defective, or fake crack; (3) Johnson obtained the sandwich bagwhich contained the substance from his long-time friend andassociate, Darryl Jenkins, who was a crack cocaine user and dealerwho did not sell bad, defective, or fake crack; (4) Johnson had solddrugs earlier that evening; (5) Jacqueline Thompson, who broughtBrooks and Brown to the location for the purchase of rocks of crackcocaine, regularly purchased that substance from Johnson at theJenkins home; and (6) Johnson had an opportunity to examine andinspect the rocky substance contained in the sandwich bag that heobtained from Darryl Jenkins....’ Brooks, 762 So.2d at 893-94. If a

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drug dealer with these credentials is qualified to provide anopinion with respect to the identity of a substance such as crackcocaine, we see no reason why an officer, such as Sergeant Kerr,who has worked ‘street level narcotics’ and handled cocaine‘every single day,’ should not-after a sufficient predicate has beenlaid-be permitted to express his opinion concerning the identityof a substance he obtained at a crime scene possessing adistinctive set of physical characteristics, as does crack cocaine.We find that the trial court did not abuse its discretion in allowingand accepting the non-hearsay testimony of Sergeant Kerr to sustainthe violation in this case.” Sinclair v. State, 995 So.2d 552 (Fla. 3dDCA 2008), rev. denied, 8 So.3d 358 (2009).

w. The defendant was found guilty of a violation of probation forpossession of drug paraphernalia. On appeal, the court reversed. “Asan example of how deficient the evidence is in this case, not only didthe State fail to produce the pipe at trial, but also the State failedto prove the specific allegation contained in the Affidavit ofViolation of Probation that testing showed cannabis residue onthe pipe. The latter failure was due to the fact that no testing ofany kind was ever conducted by the State. In fact, there was noevidence or testimony presented that there was any cannabis residueon the pipe. At best, the evidence established that Jones possessed apipe, which is neither a crime nor a violation of his probation.” Jonesv. State, 985 So.2d 693 (Fla. 5th DCA 2008).

x. “Terone Waleed Corker appeals an order revoking his probation andthe sentence he received after the trial court found that he hadviolated the terms of his probation by possessing marijuana. Becausethe evidence of a violation was insufficient to support revocation ofprobation, we reverse.... A policeman testified at the revocationhearing that the police found marijuana in a multicolored makeuppouch concealed in the back seat of the car near where the femalepassenger in question was sitting. The trial court made a finding thatMr. Corker, who was in the front seat and had been driving thevehicle that was searched, knew the marijuana was in the car, revokedprobation, and pronounced sentence.... As the marijuana was notfound on appellant’s person, this case is one of constructivepossession. In order to establish constructive possession, the Statemust prove that the defendant had knowledge of the presence ofthe drug and the ability to exercise dominion and control over thesame.... This, then, brings us to the matter of dominion and control.Knowledge of the presence of the drugs and the ability to exercise

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dominion and control over the drugs are not the same thing.... In thepresent case, while the evidence was sufficient to prove actualpossession by the passenger in the back seat, there was no evidencethat would support a finding that Mr. Corker was himselfsimultaneously in constructive possession of the same marijuana. Anofficer did testify at the revocation hearing that Mr. Corker said, ‘Iknow she did this stuff. I shouldn’t have let her in my truck.’Even if this was sufficient proof of actual knowledge thatmarijuana was present in the vehicle, it was insufficient to provethat appellant had the ability to maintain dominion and controlof the marijuana at any time. There was no proof that Mr.Corker saw the marijuana before the police search or that it wasever within his reach. The state failed to carry its burden to proveconstructive possession at the revocation hearing by a preponderanceof the evidence.” Corker v. State, 31 So.3d 958 (Fla. 1st DCA2010).

y. “Ray Edward Carter appeals an order revoking his probation for‘using intoxicants to excess or possessing any drugs or narcotics.’ Atissue is whether the state put on competent evidence at the probationrevocation hearing sufficient to prove that he used or possessedcocaine while on probation.... The state had the burden to prove, bya preponderance of the evidence, that Mr. Carter had committed awillful and substantial violation of a condition of his probation. SeeVan Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996).‘Hearsay is admissible in probation revocation proceedings, butcannot be the sole basis for revocation.’ Hogan v. State, 583 So.2d426, 427 (Fla. 1st DCA 1991) (citing Bass v. State, 473 So.2d 1367(Fla. 1st DCA 1985)). Because the laboratory test results werehearsay, and Officer Guedez was not qualified to interpret theresults of the field test, the state did not put on sufficient,competent evidence to prove that Mr. Carter used or possessedcocaine or any other drug or narcotic.” Carter v. State, 82 So.3d993 (Fla. 1st DCA 2011).

10. Proof of other charges.

a. The court reversed revocation based on a new charge of aggravatedbattery. The alleged victim was the father of the defendant. Thedeputy talked to the father, who told him his arms were injured in anincident with the defendant, but the trial judge sustained a hearsayobjection to the deputy testifying as to what the father said about howthat happened. The deputy observed injuries to the father and blood

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in the house. The father appeared to be nervous and frightened. Thedeputy did not observe that the defendant had any injuries. The trialjudge ruled that the father was not competent to testify and struck histestimony. An eye witness testified that the defendant threw atelephone against the wall and the father then attacked the defendant,throwing him against some cabinets, which caused a scar above thedefendant’s eye to split and the defendant to bleed. The witness saidthat the defendant never struck his father or hit him with a sharpobject, but rather, the defendant held his father’s arms to calm himdown. The witness testified that the blood on the father’s arms camefrom old injuries that opened up during the encounter. He did not seea laceration on the back of the father’s head, but said it could haveoccurred when the father fell in the shower. The witness alsoconcluded that the blood at the house probably came from thedefendant’s eye and the father’s old wounds. The trial judge foundthat the evidence was sufficient to show that the defendant causedthe injury to the father’s head by pushing or hitting him andrevoked probation. The court reversed. The court found thateven if the trial judge rejected the testimony of the eye witnessthere was no proof that the defendant intentionally touched orstruck his father against his will or that he caused his father greatbodily harm, permanent disability, or permanent disfigurementor used a deadly weapon against him. Double jeopardy did notbar the filing of a new affidavit alleging the same violations underthese circumstances. Cerny v. State, 65 So.3d 609 (Fla. 2d DCA2011).

b. Probation cannot be violated based solely on proof of an arrest.The state must prove the commission of a new crime by apreponderance of the evidence if that is the basis for the allegedviolation. In this case, the defendant was accused of committing thecrime of loitering and prowling, but the only evidence that wasintroduced was the testimony of one officer that the defendantwas in a neighborhood where there had been a complaint of anattempted break-in and that he was detained by other officerswhen he made a request to detain anyone in the area. Griffin v.State, 603 So.2d 48 (Fla. 1st DCA 1992).

c. The court reversed revocation for committing the new crime ofloitering and prowling. “Essentially, the State must prove twoelements to establish the crime of loitering and prowling-(1)loitering and prowling in a manner not usual for law-abidingcitizens and (2) loitering and prowling under circumstances that

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threaten the public safety. (Citation omitted) As to the first element,a police officer testified that he saw Bowser and three other people inan Ybor City parking lot at about 2:00 in the morning. However, theofficer later admitted that most places in Ybor City are open until3:00 in the morning. Therefore, a parking lot in Ybor City at 2:00 inthe morning is not an unusual place for law-abiding citizens to be. Asto the second element, the police officer testified that he watchedBowser and his companions for twenty minutes. He observed them‘walking down the street looking into unoccupied vehicles.’ ‘Theywalked all the way down to an area where a parking lot which is verydark,’ continuing to look inside vehicles. Then, they ‘cut downbehind the college qqq sat on the wall for a while, looked around’ anddecided to leave. The police officer did not observe Bowser or hiscompanions trying to open any vehicles. When he asked Bowser whathe was doing, Bowser said that he was on his way home. WhenBowser later identified his home as being in the opposite direction,the officer decided that he did not believe that Bowser was on his wayhome. The record reflects no evidence of the required imminentthreat to the peace, public safety, or property. The possiblysuspicious circumstances of four people looking into cars in adark parking lot was not sufficient to raise justifiable alarm of animmediate threat. (Citation omitted) The fact that the police officer,after arresting the group, found a screwdriver in the possession of oneperson does not affect our analysis because the ‘offense of loiteringand prowling must be completed prior to any police action.’(Citation omitted) The same is true of the police officer’s discoveryupon questioning Bowser that Bowser seemed to be taking aroundabout route home-it did not create the requisite justifiable andreasonable alarm or immediate concern. (Citation omitted).” Bowserv. State, 937 So.2d 1270 (Fla. 2d DCA 2006).

d. An officer was dispatched at 3:20 a.m. to investigate a report about

two black men carrying a burlap bag and hanging around parked carsin a residential complex. When the officer arrived he saw two blackmen, one of whom was the defendant, jump over a six foot wall thatsurrounded the complex. The men ran when they saw the officer, butstopped when the officer threatened to turn loose a police dog.Neither of the men were carrying anything when the officerapproached. They were arrested for loitering and prowling and werecharged with violating probation based on these charges. They wereconvicted. On appeal, the court reversed based on this reasoning:“because the offense of loitering and prowling is a misdemeanor, apolice officer may only make a warrantless arrest ... if both elements

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of the crime are committed in his presence. Chamson v. State, 529So.2d 1160, 1161 (Fla. 3d DCA), rev. denied, 539 So.2d 476 (Fla.1988). Consequently, only a police officer’s own observations maybe considered in determining whether probable cause existed to makea warrantless arrest. Springfield v. State, 481 So.2d 975, 977 (Fla. 4thDCA 1986). The officer must be able to point to specific andarticulable facts, which, when taken together with rational inferences,reasonably warrant a finding that a breach of the peace is imminentor the public safety is threatened.” In this case, the court noted thatthe arresting officer merely saw two men jump a high fence and startwalking towards the street. This was insufficient to establish probablecause for the arrest; therefore, it was unlawful. It was improper toviolate the defendant’s probation based on conduct whichresulted in an unlawful arrest. Freeman v. State, 617 So.2d 432(Fla. 4th DCA 1993).

e. The defendant was accused of violating his probation by committinga battery. The evidence was insufficient because the only evidencewas the testimony of the alleged victim, who said she was notbattered, and the hearsay statements of a police officer. Wyns v.State, 679 So.2d 882 (Fla. 5th DCA 1996).

f. Driving without a valid license is a crime and a sufficient basis forrevocation of probation. Tilebein v. State, 775 So.2d 316 (Fla. 2dDCA 2000).

g. The defendant was accused of violating probation by committing abattery. The only evidence was inadmissible hearsay and a judgmentof conviction. The judgment was not sufficient because it did notstate the date of the battery or the name of the victim. It did notfurnish competent evidence that the offense occurred during theprobationary period. Sagner v. State, 776 So.2d 1088 (Fla. 4thDCA 2001).

h. “James Sprague challenges the revocation of his probation.” Thedefendant was accused of violating his probation by committing anew crime of trespassing after warning. ‘A violation that triggersrevocation of probation must be willful and substantial, and its willfuland substantial nature must be supported by the greater weight of theevidence.’ (Citations omitted) .... We affirm the trial court’sfinding that Sprague violated his probation by committing thenew substantive offense of trespass. At the violation of probationhearing, Officer Wheelis testified that in December 2001, he issued

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a written trespass warning to Sprague for the Frontier Mobile HomePark. Sprague testified that two months later, in February 2002, hewas living in the mobile home park. Although Sprague also testifiedthat he did not believe the trespass warning was still in effect, OfficerWheelis testified that he gave Sprague a copy of the written warningand informed him that the warning would be in effect for six months.As such, the trial court properly concluded that a preponderanceof the evidence supported that Sprague committed the trespassand, thus, violated his probation.” Sprague v. State, 920 So.2d1248 (Fla. 2d DCA 2006).

i. “We agree that the evidence was insufficient to show that Lewiscommitted a burglary. At most, the evidence showed that Lewis ranfrom the police and hid in a house that belonged to someone else. Theoccupants of the house (the owner’s children) would not give policepermission to enter. The owner later gave the police permission toenter. There was no evidence that Lewis had entered the housesurreptitiously or unlawfully or that he intended to commit anyoffense therein.” Lewis v. State, 964 So.2d 766 (Fla. 2d DCA2007).

j. Evidence was insufficient to violate probation based on thecommission of a burglary of a car. The evidence only showed thatDefendant was with three men observed in possession of propertybelonging to the owner of the car. There was no actual evidenceDefendant was involved. Furthermore, there was no evidence ofvalue. Glover v. State, 17 So.3d 886 (Fla. 4th DCA 2009).

k. The defendant was accused of violating probation by committing thenew crime of providing false information in an attempt to obtain acommercial driver’s license. The trial judge found him guilty of theviolation, but on appeal the court reversed. The court found that theevidence was consistent with the reasonable hypothesis of innocensethat the examiner mistakenly recorded the defendant’s answer or thathe did not understand the question because of language problems.The court recognized that evidence to support a criminal convictionis not necessary to prove a vop. However, mere suspicion of a crimeis insufficient for revocation of probation. Pupo-Diaz v. State, 966So.2d 1010 (Fla. 2d DCA 2007).

l. The court found the defendant guilty of a violation for committinggrand theft. On appeal, the court found that the evidence on thischarge was insufficient. “In August 2004, Yerrick gave [Arp] an

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estimate to repair a fence and he sent this estimate to his insurancecompany. According to Arp, after receiving a $2,160 check from hisinsurance company made payable to himself and Yerrick’s company,he endorsed the check over to Yerrick. Arp characterized the amountas a ‘deposit’ on the work. Arp testified that, about a week later,Yerrick assured him the fence would be complete when he returnedfrom vacation. Yerrick did, in fact, remove the old fence. By January2005, however, he still had not installed the new fence. Initially, whenArp called, Yerrick insisted he would be there tomorrow. Eventually,though, Yerrick stopped returning Arp’s calls. We acknowledge theinstant case involves a violation of probation and therefore alesser standard of proof, but nonetheless ... agree with Yerrick’sclaim that such evidence fails to establish he had the requisitecriminal intent at the time he accepted the $2,160.” Yerrick v.State, 979 So.2d 1228 (Fla. 4th DCA 2008).

m. The court in Yerrick also found the defendant guilty of violatingprobation by exploitation of the elderly. The court affirmed thisdecision. “Yerrick argues that ... in order to prove such an offense, theState must prove the defendant had the intent at the time of thetaking. Accepting Yerrick’s assertion as true, we nevertheless findthat the evidence was sufficient to prove the conduct charged and tosustain a revocation of probation. Evidence at trial established (1)that, in September of 2005, eighty-five-year-old Mae Zerbe paidYerrick $2,200 to put hurricane shutters on her home; (2) that, aftershe paid Yerrick, Zerbe did not see or hear from Yerrick again; (3)that, at the time of Yerrick’s October 2006 arrest, nearly a year aftertaking Zerbe’s money, he still had performed no work; and (4) that,in Broward County, a contractor’s license is required to installhurricane shutters and the defendant is not a Broward County licensedcontractor.” The defendant testified differently. The trial judge hadthe right to resolve the conflict. Yerrick v. State, 979 So.2d 1228(Fla. 4th DCA 2008).

n. Probation officers statement that the defendant had committedtwo new criminal acts was based solely on hearsay and wasinsufficient to establish the violation. Brown v. State, 12 So.3d 877(Fla. 4th DCA 2009).

o. Revocation of probation was reversed because the new offensewas driving on a suspended license and the State failed to proveknowledge. Faircloth v. State, 50 So.3d 788 (Fla. 1st DCA 2010).

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D. Sufficiency of proof to establish commission of act or omission to act.

1. Intoxicants and drugs.

a. An officer’s observations of the defendant staggering down thestreet in an intoxicated state inhaling automobile transmission fluidwas sufficient to revoke the defendant's probation for use ofintoxicants to excess. Scott v. State, 524 So.2d 1148 (Fla. 3d DCA1988). See also Smith v. State, 100 So.3d 253 (Fla. 3d DCA2012)(evidence of taking intoxicants to excess was sufficientbecause it was not just one drug test, but rather the officer’sobservation of conduct showing that the defendant wasintoxicated).

b. Where the defendant was charged with violating his probation byusing intoxicants to excess in that he had a bal of .19 and failed fieldsobriety tests the evidence of this violation was insufficient where theonly proof was that he pled no contest to a DUI and the prosecutormerely stated that he had the bal and failed field sobriety tests.McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA 1988).

c. The defendant’s probation was improperly revoked where the basisfor revocation was that the defendant was intoxicated while onprobation and the sole evidence of that fact was the testimony ofthe probation officer that a police report stated that he wasintoxicated. Glenn v. State, 558 So.2d 513 (Fla. 2d DCA 1990).

d. The defendant was accused of violating his probation by using drugs.A urinalysis test taken from him proved positive. At the revocationhearing the probation officer testified that he witnessed the taking ofthe sample and the chain of custody until it was delivered to the lab.The trial judge then admitted the test results over a defenseobjection without authentication by any witness who performedthe test. The court held on appeal that the test results were hearsay,but they were admissible at a probation revocation hearing. Theresults were the only evidence as to the violation and the courtheld that his probation could not be revoked solely on hearsay.The court did, say, however: “Lab tests or other kinds of hearsayevidence may be admissible pursuant to various exceptions to thehearsay rule. In such a case, evidence properly admittedpursuant to such an exception, could sustain an order revokingprobation.” Williams v. State, 553 So.2d 365 (Fla. 5th DCA 1989).

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e. Where defendant was accused of violating his probation by usingcocaine the evidence was insufficient where it consisted solely of alab report, which was hearsay, and the defendant’s statement to hiscommunity control officer that he used cocaine for a long time.Whisler v. State, 569 So.2d 934 (Fla. 1st DCA 1990).

f. The sole evidence of violation was a urinalysis report. Thedefendant’s probation officer testified that a representative of the labpicked up the specimens, analyzed them and returned the reports tothe office. She was unfamiliar with the testing procedures and theprobation office did not maintain such records in the regularcourse of business. It was not admissible under the businessrecords exception. It was error to revoke the defendant's probationbased solely on this evidence. Chavous v. State, 597 So.2d 943 (Fla.2d DCA 1992).

g. The defendant was accused of violation of community control byusing cocaine. The probation officer sent a urine sample to a lab. Thelab sent a report back showing use of cocaine. The lab report wasallowed into evidence based on the testimony of the probation officerthat her officer kept such reports in the normal course ofbusiness, but not that they made the reports. On appeal, the courtheld that it was error to violate the defendant based on such evidence.The lab reports were not admissible as a business recordpursuant to §90.803(6) because such records must be kept andmade in the normal course of business. Hogan v. State, 583 So.2d426 (Fla. 1st DCA 1991).

h. The defendant was violated for consuming alcoholic beverages,which was allegedly detected by a interlock device. The courtreversed. “There is no question that the State may present hearsaytestimony and that the trial court may consider it in making thisdetermination; however, a revocation of probation finding cannotbe sustained based solely upon hearsay testimony. (Citationsomitted) Here, because no business records were introduced, theState’s proof consisted solely of testimony from two witnesses ....Neither of these witnesses had any personal knowledge of any ofthe facts necessary to support a finding that Dean willfully andsubstantially violated [the] condition. Each witness’s testimonyemanated exclusively from her review of business records containedin the probation file or a corporate file, the contents of which weregarnered from information supplied by nontestifying sources.Without any of these records being introduced into evidence,

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there was no direct evidence regarding Dean’s alleged alcoholconsumption. In fact, the only direct evidence presented was to theexact contrary-that Dean had not consumed any alcohol.... [U]nderthe facts of this case, even though the trial court may not havebelieved Dean, his testimony did not otherwise further the State’stheory or burden of proof. Moreover, a positive (Dean used alcohol)may not be inferred from a negative (Dean denied usingalcohol).” Dean v. State, 948 So.2d 1042 (Fla. 2d DCA 2007).

i. Defendant was found guilty of violating his community control by notsubmitting to random drug testing. “[Defendant] had been directed byhis probation officer to provide a urine sample. He did so. In[defendant’s] presence, the probation officer performed a field test onthe sample. The test results were positive for cocaine and barbiturates.Appellant denied he had used any illegal drugs. The probation officerthen field tested the same sample again. This time the test resultswere negative.” The probation officer then sent the urine sampleto a lab and the report indicated that the sample had beendiluted. “There was no evidence as to how the sample wasallegedly diluted or the degree of the alleged dilution. There wasno competent evidence as to whether the laboratory resultreflected an intentional effort by [defendant] to dilute his urinesample. The evidence was simply insufficient to support a findingthat appellant had violated [this condition].” Wagle v. State, 951So.2d 114 (Fla. 5th DCA 2007).

2. Violation of restrictions regarding travel, movement, and association.

a. The probation officer’s testimony that the defendant’s mother told herthat he had moved, combined with her testimony that the defendanttold her he was going to Alabama and that she had checked at thedefendant's residence several times and he wasn’t there, wassufficient to prove that the defendant violated his probation bymoving without approval. McPherson v. State, 530 So.2d 1095(Fla. 1st DCA 1988).

b. A violation of community control must be proven by the greaterweight of the evidence. Where the violation is failure to be at homeduring restricted hours it is not necessary for the state to provethe defendant's whereabouts. It is only necessary to prove that hewas not at home. Dietz v. State, 534 So.2d 808 (Fla. 2d DCA 1988).

c. The defendant was accused of violating his probation by having

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contact with his daughter. The only evidence was testimony that thedaughter and neighbors had said he had done so. This was hearsayand, in the absence of nonhearsay, was insufficient to revokeprobation. Vezina v. State, 644 So.2d 602 (Fla. 1st DCA 1994).

d. The defendant was violated for changing her residence withoutpermission. On appeal, the court found that the evidence wasinsufficient. ‘She was hospitalized, then at her mother's for only ashort time, and the probation officer stated that on the 15th she wasagain residing at her original residence.’ That was a four-day period.The defendant had called to advise that she was in the hospital.Johnson v. State, 668 So.2d 240 (Fla. 1st DCA 1996).

e. The defendant was accused of violating his probation by changinghis residence without permission of the probation officer. Thecourt noted that hearsay evidence, even if it consisted of statementsmade by family members that the defendant had moved, is notsufficient alone to sustain the violation. But in this case the evidenceincluded the defendant's testimony; therefore, the evidence wassufficient. Dunham v. State 683 So.2d 507(Fla. 4th DCA 1996).

f. The defendant had been issued a restraining order to stay away fromhis wife's home. The fact that he telephoned her was not aprobation violation. Talley v. State, 708 So.2d 333 (Fla. 4th DCA1998).

g. The defendant had been issued a restraining order to stay away fromhis wife's home. He was accused of violating the order. One reasonthat the judgment of violation was reversed was that the restrainingorder was never placed in evidence. Talley v. State, 708 So.2d 333(Fla. 4th DCA 1998).

h. “Thomas’ original approved residence was at his mother’s home, buthe sought and obtained permission from his parole officer to changeit to his girlfriend's home. Because of a domestic quarrel overThanksgiving weekend, he moved back to his mother’s home wherethe parole officer located him on the Monday followingThanksgiving. Thomas explained to the officer that he had attemptedto call him at his office, but was unsuccessful because of the longholiday weekend. Based upon the facts, the trial court found thatThomas had violated the condition that he obtain approval beforechanging his residence.” On appeal, the court reversed. “The statefailed to meet the burden of proof in the instant case that

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Thomas’ violation was willful and substantial. The circumstancessurrounding Thomas’ change of residence did not show a willfulviolation. Thomas’ move over a holiday weekend back to theoriginal approved residence demonstrated a degree ofresponsibility prompted by the exigencies of the circumstances.”Thomas v. State, 760 So.2d 1138 (Fla. 5th DCA 2000).

i. “Kaduk argues that leaving his residence because of a domesticquarrel does not constitute a willful and substantial violation of theterms of his probation.... Kaduk’s failure to report his absencefrom his residence for a period of over two weeks is not aninsignificant violation of his probation conditions.... Other thanKaduk’s own testimony, there was no evidence that he attempted tocontact his probation officer before then. While Kaduk claimed thathe left his probation officer a message, when he received no responsethen, as the trial court commented, he should have called her again.”Additionally, there was no evidence that the defendant moved to apreviously approved residence.” Thus, the court upheld therevocation. Kaduk v. State, 959 So.2d 817 (Fla. 4th DCA 2007).

j. It was a condition of the defendant’s probation that he have nocontact with his former wife except for divorce court proceedings.The defendant was accused of violating that condition. He argued thathe was just trying to arrange visitation and the involved provision wasvague. The trial judge found that he violated his probation. On appeal,the court affirmed. “To revoke [probation] [t]he condition ... mustbe one that is clear and not ambiguous, or subject to differentreasonable interpretations. This could be problematic in a familydispute situation where there may be fault on both sides, and asin this case, Schneck’s interpretation of the condition as allowingvisitation and sufficient contact with Barbara to makearrangements for visitation, is reasonable.” But the court foundthat the evidence was sufficient to show that the defendant washarassing the former wife, not engaging in reasonable actions relatedto visitation. Schneck v. State, 764 So.2d 898 (Fla. 5th DCA 2000).

k. The defendant lived in his mother’s home with minor children. It wasa condition of the probation that the defendant not be in a room withthe children unless an adult supervisor was present. The defendantwas accused of violating that condition. No one saw this happen, butthe probation officer assumed it did because he heard childrenrunning by the front door when he arrived. Furthermore, the Stateargued that there was no adult supervision because the defendant’s

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mother was asleep. On appeal, the court found that the violationwas based on speculation and it was not reasonable to concludethat because the mother was asleep there was no adultsupervision. Thus, there was insufficient evidence of a wilfulviolation. Bonner v. State, 786 So.2d 1197 (Fla. 4th DCA 2001).

l. “Appellant, when he was twenty years old, had a relationship with afourteen year old, who became pregnant and had their child. Afterpleading no contest he served six months in the county jail followedby two years of probation.” The trial court found him guilty ofviolating several conditions of probation. The court reversed. “Oneof the witnesses who testified was Donna Williams, who became thelegal guardian of the victim in 2006.... One of the grounds on whichthe trial court found a violation of probation was that appellant hadcontact with the victim prior to his probation officer speaking to thevictim’s guardian and obtaining consent. This, however, was not acondition of probation. Rather ... the contact had to be withconsent of family members/guardian and with adult supervision.There was no requirement in the court order that the probationofficer had to approve each contact. It is well settled thatprobation officers cannot unilaterally impose conditions ofprobation which have not been established by the court.... Thecourt found as a separate violation that appellant had unauthorizedcontact with the victim-at church, at the child support enforcementoffice, and by telephone. It is undisputed, however, that as to both thecontact at church and the child support office, Donna Williams waspresent. As to the telephone contact, it was over a cell phone....Because the guardian was aware, and even facilitated the cellphone contact, this was not a violation.... The only other groundfor violating probation was that the appellant had denied to hisprobation officer that he had been having contact with the victim.Although this finding is based on the testimony of the probationofficer, it is significant that the probation officer was laboring underthe misapprehension that he had to approve all contact. He hadcommunicated that incorrect information to the appellant.Considering that appellant does in fact have a relationship with thevictim and his child, whom he is attempting to support, together withthe erroneous imposition of the condition by the probation officer, weconclude that appellant’s denial of contact to the probation officerwas not, standing alone, a substantial violation of probation.... We donot minimize the importance of probationers being honest withtheir probation officer, but here the officer had incorrectlyadvised appellant that he had to approve all contact, and none of

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the contact violated any of the valid conditions of probation.”Aranda v. State, 982 So.2d 747 (Fla. 4th DCA 2008).

m. It was a condition of the defendant’s community control that sheremain confined to her residence except one half hour before and afterher approved employment. The community control officer saw herstanding outside her apartment, but inside the chain link fence of herresidence or about four feet from her front door. At the hearing, thedefendant said that her community control officer told her that shecould stand outside her front door as long as she was in front of herhouse. She also said she did not know what confinement meant. Thetrial judge revoked her community control. On appeal, the courtreversed. “It is certainly reasonable to conclude that appellant,having a limited education, pregnant, and with no airconditioning, believed she was not violating her condition ofcommunity control by stepping outside and remaining on thepremises of her residence.” Jackson v. State, 785 So.2d 524 (Fla.4th DCA 2000).

n. The court erred in finding a violation for having contact with a childby sending a card to the child, where the condition of probation didnot prohibit correspondence. Luces v. State, 808 So.2d 265 (Fla.5th DCA 2002).

o. The trial court could revoke community control based solely onone incident of failure to remain confined to his home. State v.Casner, 825 So.2d 993 (Fla. 2d DCA 2002).

p. The defendant was accused of violating a condition of hisprobation that required he remain at an approved location. Onappeal, the court reversed because the evidence failed to establisha violation. The opinion gives a detail explanation of the problemwith the State’s case. Basically, those problems involved: (1) a lackof proof that the defendant was ever told that he could not be wherehe was; (2) confusion as to whether he was searching for a job or onthe way to a place where he was supposed to be. Davis v. State, 867So.2d 608 (Fla. 2d DCA 2004).

q. “A condition of [Defendant’s] probation required him not to‘associate with any person engaged in criminal activity.’Testimony submitted at trial by two police officers alleged that onFebruary 28, 2004, the officers responded to a call regarding narcoticsactivity at a motel. The officers conducted a search of the motel room

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that revealed rolling papers, marijuana, a container with cocaineresidue, and a scale with cocaine residue. A crack pipe was alsofound in the bathroom where Appellant was when the first officerarrived. At the time of the search, two females and one maleoccupied the room with Appellant. The two females admitted toownership of the paraphernalia and were arrested. Appellantadmitted the hotel room was rented in his name, but denied anyknowledge of illegal activity taking place. Appellant argues thatthe record is devoid of evidence showing that he willfully associatedwith persons engaged in criminal activity. For probation to berevoked because of a violation of a condition, the state must show awillful violation supported by a preponderance of the evidence....Probation revocation orders are reviewed only for abuse of discretion.Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1st DCA 1996). Thisis because the trial court can better determine the ‘probationviolator’s motive, intent, and attitude and assess whether theviolation is both willful and substantial.’ Carter, 835 So.2d 262.Indeed, while Appellant has the right to be heard, the trial courtis free to disbelieve his testimony. The trial court did not abuse itsdiscretion. Its conclusion was based on competent testimonypresented at trial. Indeed, Appellant’s single incident of associatingwith persons engaged in criminal activity is enough to amount toa willful and substantial violation.” Bland v. State, 896 So.2d 937(Fla. 1st DCA 2005).

r. The defendant was in a car with a person who did not have a validdriver’s license. The defendant was convicted of violating thecondition that he not associate with people engaged in criminalactivity. He was also violated for other reasons, which wereaffirmed. The court reversed the finding of guilt on the associatingcharge because there was no evidence the defendant knew that thedriver had no valid driver’s license. Clayton v. State, 100 So.3d725 (Fla. 5th DCA 2012).

s. The defendant was convicted of violating his probation by changinghis residence without his probation officer’s knowledge and approval.The court reversed. “At best, hearsay testimony from the probationofficer showed that Mr. Gauthier spent thirteen nights at hisgirlfriend’s home. However, that evidence was contradicted by directtestimony from Mr. Gauthier’s landlady who testified that Mr.Gauthier rented a room from her, kept his possessions there, spentmost nights there, paid rent and came by almost every day, even whenhe did not sleep there. Because Mr. Gauthier did not have a

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curfew, the hearsay testimony from the probation officer alonewas insufficient to support a finding that he had changed hisapproved residence without permission.” Gauthier v. State, 949So.2d 326 (Fla. 5th DCA 2007).

t. It was a condition of defendant’s probation that he have no contactwith the victim. The probation officer filed an affidavit alleging thatthe defendant violated probation by being at the victim’s residence.The victim’s testimony contradicted the allegation in the affidavit.The evidence showed that the only contact was when “the victimcalled Jackson to request that Jackson provide financial assistance forthe victim’s child, who was fathered by Jackson. The revocation ofJackson’s probation was predicated on Jackson's admission to thattelephone contact. Although the telephone contact which wasinitiated by the victim may have constituted a technical violationby Jackson of the no-contact condition, it was not a willful andsubstantial violation.” Furthermore, it was not charged as aviolation. Jackson v. State, 970 So.2d 346 (Fla. 2d DCA 2007).

u. The trial court found that the defendant violated his probation bychanging his address. The basis for the decision was that theevidence showed that the conditions at the place where thedefendant claimed were deplorable and the place was beingrenovated. On appeal, the court reversed. The court stated thatthere was no requirement that the defendant live in anyparticular kind of residence. More important, the probation ofverified that the defendant was at that address after visiting thedefendant. The fact that the probation officer returned two weeks laterand found no one there, did not justify the conclusion that thedefendant had moved. “[T]he probation supervisor did not testify thatshe had checked with neighbors or done anything else to verify thatMr. Thompson had moved. Instead, she left a message for Mr.Thompson on his mother’s telephone answering machine. We notethat Mr. Thompson did not have a curfew and that he was not oncommunity control. Evidence that Mr. Thompson was not at homeduring a single visit and that he failed to return a telephonemessage left on a relative’s telephone answering machine was notsufficient to prove that he had changed his residence....Furthermore, the State did not present any evidence that Mr.Thompson was actually living at a different address.” Thompson v.State, 974 So.2d 594 (Fla. 2d DCA 2008).

v. “Joslin’s ... claims that the evidence was not sufficient to support the

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court’s finding that he had unsupervised contact with Zack. We agree.While three witnesses testified that they saw Joslin in his backyardwith a young boy on various occasions, none of these witnessescould say that Joslin and the boy were unsupervised. That is, notone of the witnesses had an unobstructed view of the backyard.Accordingly, the evidence did not support the court’s finding thatJoslin violated his probation by having unsupervised contact withZack.” Joslin v. State, 984 So.2d 1269 (Fla. 2d DCA 2008).

w. The defendant was convicted of violating a condition of probationthat prohibited knowingly associating with persons involved incriminal activity. The court reversed. “[S]imply observing criminalactivity and being aware criminal activity is occurring nearbydoes not establish that a defendant was knowingly associatingwith persons engaged in such activity.... In the present case, otherthan the defendant’s awareness of and proximity to the criminalactivity for what the deputy labeled as a short period of time, the onlyevidence tying the defendant to the wrongdoers was the defendant‘having conversation’ with them. The deputy offered no specifics asto the nature or content of this conversation and the defendant ‘wasn'tthere very long.’ The evidence reflected that the defendant did notarrive at the CITGO with the wrongdoers and no evidence waspresented that he knew them. Even assuming that the defendantasked for a light for his cigarette, such incidental contact with aperson or persons who are engaged in criminal conduct does notestablish an association with such person or persons.... A willfuland substantial violation of probation was not established by thegreater weight of the evidence.” Holmes v. State, 988 So.2d 1252(Fla. 5th DCA 2008). See also Clayton v. State, 100 So.3d 725 (Fla.5th DCA 2012)(violation reversed where the defendant was apassenger in a car where the driver did not have a license andcannabis was present because there was no evidence the defendanthad knowledge).

x. It was a condition of probation that the defendant “‘not contact [the]victim or [the victim’s] family during the period of probation’”; and“write letters to credit card companies assuming responsibility fordebts he had run up fraudulently on his employer’s (the ‘victim’s’)account.... ‘To establish a violation of probation, the prosecution mustprove by a preponderance of the evidence that a probationer willfullyviolated a substantial condition of probation.’ Van Wagner v. State,677 So.2d 314, 316 (Fla. 1st DCA 1996) (citing Salzano v. State, 664So.2d 23 (Fla. 2d DCA 1995)). Both conditions at issue here are

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undoubtedly ‘substantial.’ See generally State v. Carter, 835 So.2d259 (Fla.2002).” The State failed to show that the defendantwillfully violated the no contact order. The evidence only showedthat the defendant made “reports to governmental authoritiesalleging illegal practices on the part of the victim’s business.”That did not violate the no contact order. “At the revocationhearing, uncontradicted evidence established that the assistant stateattorney had not furnished the names of the credit card companieswith pertinent account numbers--information which the trial court haddirected be given to Mr. Michael--either to Mr. Michael or to hisprobation officer. Both Mr. Michael and his probation officertestified that he sought unsuccessfully to obtain this informationfrom his probation officer and from his lawyer. They also testifiedthat Mr. Michael told his probation officer that he was having troubleacquiring the information. The State failed to prove that Mr.Michael had the information he needed to write letters assumingresponsibility for the credit card charges in question, despite hisefforts to obtain it.” Michael v. State, 992 So.2d 367 (Fla. 1st DCA2008).

y. The defendant appealed revocation of community control. Thedefendant was accused of violating “by changing his residencewithout permission (condition 3), failing to remain confined to hisapproved residence (condition 13), and committing new lawviolations (condition 5).” The trial judge found that he violated allthree. On appeal, the court reversed. “[T]he only evidence presentedby the State to establish that Crawford had violated condition 3was his community control officer’s hearsay testimony thatCrawford’s sister told him that Crawford was no longer livingwith her at his approved residence. This hearsay testimony,standing alone, is legally insufficient to support the revocation ofCrawford’s community control.” The court upheld the revocationbased on the other two violations. Crawford v. State, 982 So.2d 1(Fla. 2d DCA 2008).

z. The trial court revoked the defendant’s probation for several reasons.The court reversed. “Regarding the alleged change of residence, at thehearing Gary’s probation officer testified that she had visited Gary’shouse several times but that she was never present. She alsorecounted that Gary’s adult daughter, who lived at the same home,said that her mother had moved away. Gary denied that she hadmoved. She testified that the lease was in her name and pointed outthat she had been arrested for the alleged probation violation at that

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very residence.... The fact that the probation officer did not findGary at home when she visited did not prove that Gary hadmoved. The State’s only other evidence was the hearsaystatement attributed to Gary’s daughter. This, standing alone, wasinsufficient to support the revocation. (Citation omitted) Moreover,the State had the opportunity to present testimony from the hearsaydeclarant at the revocation hearing yet declined to do so.” Thedaughter was present at the hearing but the State objected to hertestifying apparently because she was not on a witness list. Gary v.State, 987 So.2d 180 (Fla. 2d DCA 2008).

aa. Defendant “appeals the circuit court’s revocation of his probation....The defendant argues that the state did not present sufficient evidencethat his alleged violations of failing to report to his probation officerand changing his residence without his probation officer’s consentwere willful and substantial. Specifically, the defendant contendsthat his assigned ‘residence’ was beneath a bridge, and he wasforced to move when the Department of Transportation posted a‘no trespassing’ sign at the bridge. Based on our review of therecord, we agree with the defendant’s argument. See Williams v.State, 896 So.2d 805, 806-07 (Fla. 4th DCA 2005) (state failed topresent sufficient evidence to demonstrate defendant’s probationviolations for changing residence without consent and failing toreport were willful and substantial where defendant was living on thestreet and his homelessness was not intentional). We reverse andremand with directions to: (1) dismiss the violations of probation, and(2) reinstate the defendant's probation.” Boyd v. State, 31 So.3d 267(Fla. 4th DCA 2010).

bb. The defendant was violated because he moved to Georgia without hisprobation officer’s permission, but the evidence showed that he hadhis probation officer’s permission to live in Georgia for manymonths and the fact that he did not report on June 22, 2006 asinstructed or afterwards did not support this violation. Haywoodv. State, 987 So.2d 1285 (Fla. 1st DCA 2008).

cc. “We reverse the finding that Royal violated condition four of hisprobation by leaving his county of residence without permissionbecause the State did not present evidence to refute Royal’stestimony that he did have permission to leave the county. SeeHicks v. State, 890 So.2d 459, 462 (Fla. 2d DCA 2004) (holding thatdefendant did not willfully violate his probation by operating a kioskin a mall because his probation officer gave him tacit permission to

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do so); McCarty v. State, 978 So.2d 249, 249 (Fla. 5th DCA 2008)(holding that defendant's discharge from one branch of a drugtreatment program was not a willful violation of probation becausehis probation officer had authorized the defendant to report to anotherbranch).’” Royal v. State, 996 So.2d 948 (Fla. 2d DCA 2008).

dd. Defendant was accused of violating a condition that he not be alonewith children under the agent of 16 without a parent or guardianbeing present. The court reversed revocation. “[The defendant]testified at the VOP hearing that there were twoparent/guardians present and watching him play with the girls.The State failed to rebut this testimony.” Dobzynecki v. State, 2So.3d 385 (Fla. 5th DCA 2009).

ee. The defendant was ordered not to have any “direct or indirect”contact with the victim. A call to the victim’s mother was not awillful and substantial violation. Minus v. State, 34 So.3d 178 (Fla.4th DCA 2010).

ff. Defendant argued that the State failed to prove that failure to remainat residence was willful. “Courts must consider violations on acase-by-case basis to determine whether the violation was willfuland substantial by a greater weight of the evidence. State v.Carter, 835 So.2d 259, 261 (Fla.2002). Here, the probation officertestified that Appellant was away from his residence and ‘wanderingthe neighborhood’ on an almost daily basis, and that he hadpersonally seen Appellant away from his residence on at least oneoccasion. Further, the officer testified that Appellant was aware thathe was not to leave his residence and that he had warned Appellantmultiple times not to leave. Considering this testimony incombination with the GPS data discussed above, the trial courtdid not abuse its discretion in determining that Appellantwillfully and substantially violated his probation.” Ruise v. State,43 So.3d 885 (Fla. 1st DCA 2010).

3. Failure to comply with reporting and procedural requirements ofprobation.

a. The defendant’s probation was violated for not remaining near hispersonal tracking device. This was based on the fact that the recordsof the monitoring company showed that his device had alerted severaltimes. The court reversed because the only evidence was theprobation officer’s testimony and the report from the monitoring

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company, but no one from the company testified. Thus, all of theevidence of the alleged violation was hearsay, which did not fallwithin an exception. And for that reason, the evidence wasinsufficient. Additionally, the evidence did not establish a willfulviolation. Testimony indicated that the device malfunctioned; thealerts were all late at night or early in the morning when the defendantsaid he was asleep; and most of the alerts were cleared within aminute or so. Edwards v. State, 60 So.2d 529 (Fla. 2d DCA 2011).This is in contrast to the situation in Ruise where the court found theevidence sufficient.

b. The defendant was charged with violating his probation by not filingwritten reports, not paying costs, and not informing his probationofficer after he moved and changed employment. At the hearing thedefendant's new probation officer, testified that she had never met thedefendant and had no personal knowledge of his case. Over defenseobjections, the probation officer read the charged violations fromthe affidavit prepared by the prior probation officer andidentified the probation order signed by the defendant whichstated that he knew his responsibilities. The defendant testified thathe made his monthly reports and payments until instructed not to andthat he moved and changed his address and employment with theconsent of his former probation officer. The court revoked probation.On appeal, the Court reversed since all the evidence presented bythe state was hearsay and the defendant's unrebutted testimonydenied any violation. McCarrick v. State, 553 So.2d 1373 (Fla. 2dDCA 1989).

c. Where the defendant was charged by affidavit with violating hisprobation by failing to report to his probation officer and there was noevidence of such violation, the trial judge could not revoke hisprobation based on evidence that the defendant committed othercrimes while on probation. “A person’s probation cannot berevoked for conduct not charged by affidavit and warrant.”Pimentel v. State, 560 So.2d 1387 (Fla. 2d DCA 1990), reversed onother grounds, 594 So.2d 304 (Fla. 1992).

d. It was improper to violate the defendant’s probation for failure toreport where he was in jail at the time he was to report. Frazier v.State, 587 So.2d 660 (Fla. 3d DCA 1991).

e. The evidence was sufficient to satisfy the conscience of the courtthat the defendant had violated his probation where it showed that

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less than 30 days of being placed on probation, the defendant startedpreparations to flee to Cuba, which included: (1) obtaining falseidentification, (2) arranging for transportation, (3) divesting himselfof his real and personal property located in Dade County. “The merefact that the authorities may have stopped him short of hisdestination cannot alter these facts.” Perez v. State, 599 So.2d1385 (Fla. 3d DCA 1992).

f. The defendant was accused of violating probation by failing to makea report and by failing to remain at liberty without violating anylaw. As to the failure to report, the evidence consisted of theprobation supervisor testifying that: (1) she examined the file andfound no monthly reports; (2) she had no personal knowledge of thecase and had never met the defendant; (3) the affidavit of a priorprobation officer stated that the defendant failed to file any reportsafter a certain date. Neither the file nor the affidavit wereintroduced into evidence. On appeal, the court held that theevidence was insufficient to convict the defendant of a violation onthe failure to report because it consisted solely of hearsay. Theevidence concerning the other violation consisted of the testimony oftwo officers who said they saw the defendant with what they believedto be crack cocaine and a crack pipe and that they had arrested thedefendant. The trial judge found that the evidence was insufficient toestablish a violation on the charge of failing to live at liberty withoutviolating any law. The court held that evidence which had been foundto be insufficient to support one violation could not be consideredcumulatively with other legally insufficient evidence to supportanother violation. Mitchell v. State, 607 So.2d 486 (Fla. 3d DCA1992).

g. The defendant was told by his probation officer to apply to 26possible places of employment beginning at 7:00 a.m. and reportto the p.o. the next day with a list of the employers he hadcontacted. When the defendant failed to comply, an affidavit ofviolation was filed, alleging failure to comply with the instructions ofthe p.o. On appeal, the Court found that the trial judge erred infinding a violation because these instructions were “not such amatter of routine supervision as to be encompassed” in thestandard instruction that the defendant follow instructions of the p.o.Hay v. State, 642 So.2d 1200 (Fla. 2d DCA 1994).

h. Failure to produce documentation to show inability to pay costsof supervision was a willful and substantial violation. Oates v.

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State, 872 So.2d 351 (Fla. 2d DCA 2004).

i. The only evidence was the intake officer’s testimony that, based onher review of the sign in log in the reception area of the probationoffice, the defendant did not report as instructed. Those records werenever introduced. Thus, the revocation was based solely on hearsayand was reversed. Kipp v. State, 657 So.2d 931 (Fla. 2d DCA 1995).

j. The defendant was found guilty of violating his probation by failingto report to his probation officer. His testimony was that he wasarrested and incarcerated before he was scheduled to appear. The onlyevidence that contradicted his testimony was the police report thatshowed that he was arrested after he was scheduled to report, andtestimony that it would not surprise him that the officers listed adifferent time from his recollection on the police report. On appeal,the court reversed. “The police report clearly constitutes hearsay,and we find that Appellant’s testimony does not sufficientlycorroborate the hearsay police report to show by apreponderance of the evidence that Appellant violated hisprobation.” Anderson v. State, 711 So.2d 106 (Fla. 4th DCA 1998).

k. “The failure to file monthly reports is a sufficient basis forrevocation of probation.” Williams v. State, 728 So.2d 287 (Fla. 2dDCA 1999); See also Strunk v. State, 728 So.2d 320 (Fla. 5th DCA1999)(violation proper where the only explanation the probationergave for not filing a written report was, “I don’t know.”).

l. The defendant was accused of violating probation by notreporting to work release. The defendant said that he had failed todo so because he had a hand injury. The trial judge found him guilty.On appeal, the court affirmed because the defendant did not explainwhy such an injury would have prevented him from reportingand he declined the opportunity to call the original probationofficer in support of his defense. Tobias v. State, 828 So.2d 1066(Fla. 4th DCA 2002).

m. The defendant was accused of violating his probation by not reportingfor three months. The only evidence was the testimony of hisprobation officer, who was not assigned to the case during thosemonths. Thus, the evidence was entirely hearsay and wasinsufficient. Tobias v. State, 828 So.2d 1066 (Fla. 4th DCA 2002).

n. The defendant was accused of violating his probation by failing to

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report in May. He admitted that, but said it was because henegligently put the meeting in his calendar as being in June. Thetrial judge found him guilty of the violation. On appeal, the courtrejected the defendant’s argument that his conduct was negligent,not willful, because he knew that he had to report every month.McMahill v. State, 826 So.2d 526 (Fla. 5th DCA 2002).

o. The defendant was accused of violating probation by failing to report,but the only evidence was testimony from a probation officer whohad never met the defendant, and was testifying from anotherofficer’s notes. That was hearsay and was insufficient for revocation.Thompson v. State, 965 So.2d 1250 (Fla. 1st DCA 2007).

p. “Gary’s probation officer had instructed her to report on a date certainin November 2006 and it is undisputed that she failed to do so. ButGary offered an explanation. Prior to the scheduled date of themeeting, a police officer had informed Gary that she had violated herprobation, that an affidavit of violation had been filed, and that awarrant and pick up order were being prepared. Gary claimed that shethen attempted to turn herself in to authorities but the arrest warranthad not yet issued. In its closing argument, the State confirmed thatGary had been advised of the violation but maintained that she hadnever been told she was excused from reporting. But the State didnot present testimony from the officer who discussed the matterwith Gary. Its argument that she was not excused was based oneither hearsay or speculation. The evidence did not prove awillful violation.” Gary v. State, 987 So.2d 180 (Fla. 2d DCA2008).

q. The defendant was found guilty of violating his probation by failingto report to his probation officer in Gainesville on June 22, 2006 asinstructed. At the hearing the evidence showed that he had troublewith his car (tire blew out) on I-75 and did not have the money to fixit. He contacted his probation officer and advised that person ofhis situation and said that he would report as soon as he could fixthe car or get a ride. “A probationer who fails to comply with theconditions of his supervision despite reasonable efforts to complydoes not violate his probation willfully. See Van Wagner v. State, 677So.2d 314, 317 (Fla. 1st DCA 1996) (‘Where a probationer makesreasonable efforts to comply with a condition of probation, violationof the condition cannot be deemed ‘willful.’’); (Citation omitted)Because the record demonstrates appellant’s good faith effort tocomply with his probation officer’s instructions to return to

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Florida on June 22, 2006, the trial court abused its discretion infinding appellant's failure to report as instructed willful.”Haywood v. State, 987 So.2d 1285 (Fla. 1st DCA 2008).

r. The court found the defendant guilty of a violation because he did notreport to his probation officer at any time after June 22, 2006, but thatwas not alleged in the affidavit. It only alleged that he failed toreport on June 22, 2006 as instructed. The trial judge treated hisfailure to report as a continuing violation. On appeal, the courtdisagreed and held that this violation was improper because itwas not alleged in the affidavit.” Haywood v. State, 987 So.2d1285 (Fla. 1st DCA 2008).

s. See cases earlier in outline dealing with failure to file a single report.

4. Completion of specific requirements.

a. The defendant was accused of violating probation by not payingcertain costs and by failing to do fifty hours of community service,but the court did not establish any deadline or schedule. “[W]henappellant was arrested and incarcerated for violating hisprobation, his probationary term still had eighteen days to go. Hecorrectly argues that, because there was no time schedule forpayment of the costs or performance of the community service,he had until the end of his probationary term to comply withthese conditions.” The court relied upon the decision in Llumbet v.State, 698 So.2d 381 (Fla. 4th DCA 1997), where the court held thatif the there is no deadline for payment of restitution, the defendanthas the entire term of community control in which to pay. “Wecaution trial judges to either set periodic schedules or time limitsprior to the end of probationary periods for conditions whichrequire affirmative acts of the defendant, such as payments orperformance of community control. Without such scheduling, itis difficult to revoke for violation of those conditions, because thedefendant has until the end of the period to perform them,Lluber, yet the court loses jurisdiction over the defendant at theexpiration of the period.” Willis v. State, 727 So.2d 952 (Fla. 4thDCA 1998). See also Murtha v. State, 777 So.2d 1067 (Fla. 3d DCA2001; McCoy v. State, 730 So.2d 803 (Fla. 2d DCA 1999)(probationcould not be revoked where defendant had been given twelve monthsto pay and the time had not elapsed).

b. Where probation officer established the payment schedule, the

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probationer had the entire term of probation to pay no matterhad reasonable the schedule was. Hutchinson v. State, 801 So.2d291 (Fla. 1st DCA 2001).

c. The defendant admitted that he had been discharged from the drugprogram, but the only evidence that this was willful andsubstantial was a hearsay statement from the director. That wasinsufficient. Stewart v. State, 926 So.2d 413 (Fla. 1st DCA 2006).

d. The court found the defendant guilty of violating probation by notcompleting a treatment program. The defendant argued that theevidence was insufficient because it was based on hearsay. “We donot agree.... In the instant case, while the director of the residentialtreatment center testified from records maintained by the facility, hertestimony in such regard constitutes hearsay because sheacknowledged she was not the records custodian. The court’sadmission of such testimony does not, however, require reversal ofthe order in that it was otherwise supported by competent,non-hearsay testimony from appellant’s probation officer who statedthat on October 18, 2004, she again specifically instructedappellant with regard to the rules of the program and that failureto comply with the rules could result in a violation of herprobation.” Winbush v. State, 937 So.2d 768 (Fla. 1st DCA 2006).

e. See cases earlier in outline dealing with completion of counseling.

5. Testing.

a. A condition that the defendant not use intoxicants to excess is notsufficient to give the probation officer the discretion to imposetesting requirements, including urinalysis. Paterson v. State, 612So.2d 692 (Fla. 1st DCA 1993).

b. The condition that the defendant comply with all instructions theprobation officer may give him is insufficient to require that thedefendant submit to urinalysis when it has not been ordered bythe judge. Paterson v. State, 612 So.2d 692 (Fla. 1st DCA 1993).

6. Employment.

a. The defendant was ordered by the probation officer to secure a jobwithin a certain period of time. She failed to get the job. On appeal,the court found that the condition was invalid because it required

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more than a good faith effort to secure employment and there was noevidence that the probationer was told what standards applied or wasgiven any guidelines. Vezina v. State, 644 So.2d 602 (Fla. 1st DCA1994).

b. The requirement that the defendant get a job within 30 days ofrelease was an invalid condition. Demar v. State, 840 So.2d 381(Fla. 1st DCA 2003).

c. The defendant was required to remain in his home as a condition ofcommunity control. He was accused of violating this condition by notremaining at work. On appeal, the court reversed because that wasnot the condition. Shelton v. State, 851 So.2d 912 (Fla. 4th DCA2003).

d. The defendant was violated for not maintaining employment. Onappeal, the court reversed. The defendant had two jobs over severalmonths. He was terminated from the first one for asking for timeoff to go to a funeral and the second place had no full timeposition. At the time the violation was filed he was attendingvocational school. Thus, the court found that there was no willfulviolation. Reed v. State, 865 So.2d 644 (Fla. 2d DCA 2004).

e. It was a condition of probation that the defendant work diligently ata lawful occupation. The court reversed a finding that the defendantviolated this condition. The defendant lost his job because thebusiness closed. The defendant got a similar job about three monthslater. He lost that job in one month. On appeal, the court observedthat the defendant “maintained employment during much of thepertinent time frame addressed by the evidence, and when he wasunemployed he searched for and obtained new employment.”Davis v. State, 867 So.2d 608 (Fla. 2d DCA 2004).

f. “The trial court both orally and in his written order found that Mr.Johnson had violated the condition that he remain lawfullyemployed because he was arrested for selling cocaine. Remainingemployed in a lawful occupation and selling drugs, however, arenot mutually exclusive. That he was caught committing this crimedoes not mean that he did not have a lawful full time job. He mayvery well have been lawfully employed. There is no testimony on thisissue one way or the other. As there was no testimony or otherevidence concerning whether or not he was so employed, he could nothave been found to have violated the condition of probation

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mandating that behavior. The testimony concerning his law violation,thus, does not in this instance support a finding that he was notlawfully employed, and the court abused its discretion in so finding.”Johnson v. State, 890 So.2d 490 (Fla. 5th DCA 2004).

g. The defendant was found guilty of violating a condition ofcommunity control that required he be in his residence “‘except forone-half hour before and after your approved employment,community service work or any other special activities approvedby your Supervising Officer.” The defendant’s work schedulerequired that he complete his work day by 5:00 p.m. “Therefore, ona normal work day, [defendant] would be required to be at hisresidence by 5:30 p.m. On the day in question, [defendant] arrivedhome, after working at his job, at 5:35 p.m. [Defendant’s] probationofficer testified that his employers had advised her that [defendant]had left work that day at approximately 4:45 p.m. Thus, [defendant]would have been required to have been at his residence by 5:15 p.m.[Defendant] testified he did not actually leave the [employers’]property until after 5:00 p.m. [One employer] testified that herhusband had been mistaken in saying that he had left thepremises, because [defendant] was actually in the back of theproperty putting up the mower.... The evidence in this case wasinsufficient to establish that appellant was more than five minuteslate. We can foresee instances where a five minute late arrival couldconstitute a material and substantial violation of community control.However, under the facts of this case, we find it was an abuse ofdiscretion for the trial court to have found appellant willfully andmaterially violated [this condition].” Wagle v. State, 951 So.2d 114(Fla. 5th DCA 2007).

VI. Judgment & sentence for violation.

A. Form and procedure.

1. The trial court must identify in its order the specific conditions which itfinds the defendant violated. Matzke v. State, 100 So.3d 54 (Fla. 2d DCA2011).

2. The trial judge is required to enter a written order setting forth theconditions which the probationer has been found to have violated. Thisis true even if the trial judge has orally pronounced which conditionswere violated. Bloodworth v. State, 672 So.2d 56 (Fla. 1st DCA 1996). Seealso Washington v. State, 731 So.2d 865 (Fla. 3d DCA 1999).

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3. On a violation the court must enter a written order setting forth theconditions that it finds were violated. King v. State, 46 So.3d 1171 (Fla.4th DCA 2010); Walker v. State, 41 So.3d 1094 (Fla. 5th DCA 2010);Manis v. State, 30 So.3d 586 (Fla. 5th DCA 2010).; Reyes v. State, 9 So.3d649 (Fla. 2d DCA 2009); Smith v. State, 962 So.2d 380 (Fla. 4th DCA2007); Wright v. State, 958 So.2d 594 (Fla. 4th DCA 2007); Burt v. State,931 So.2d 1005 (Fla. 3d DCA 2006); Delisa v. State, 910 So.2d 418 (Fla. 4thDCA 2005); Cato v. State, 845 So.2d 250 (Fla. 2d DCA 2003); Perkins v.State, 842 So.2d 275 (Fla. 1st DCA 2003); Larangera v. State, 686 So.2d697 (Fla. 4th DCA 1996); Mitchell v. State, 681 So.2d 891 (Fla. 4th DCA1996); Barta v. State, 678 So.2d 923 (Fla. 4th DCA 1996); Nelson v. State,670 So.2d 193 (Fla. 4th DCA 1996); George v. State, 577 So.2d 996 (Fla.1st DCA 1991); Frazier v. State, 571 So.2d 593 (Fla. 2d DCA 1990).Knight v. State 566 So.2d 339 (Fla. 1st DCA 1990); Donley v. State, 557So.2d 943 (Fla. 2d DCA 1990).

4. A finding on the record that the defendant violated a specific condition isinsufficient. The court must generate a written order identifying thespecific conditions violated. Robinson v. State, 74 So.3d 570 (Fla. 4thDCA 2011). See also Gary v. State, 90 So.3d 333 (Fla. 1st DCA 2012);McCullum v. State,, 37 Fla. L. Weekly D773 (Fla. 1st DCA April 2, 2012);Oertel v. State, 82 So.3d 152 (Fla. 4th DCA 2012); Fowler v. State, 79So.3d 868 (Fla. 1st DCA 2012).

5. While the court found that the evidence did not support revocation on oneallegation, it nevertheless affirmed revocation because it was “abundantlyclear from the transcript … that the trial judge would have revoked”community control based on other violations. Tirado v. State, 69 So.3d105 (Fla. 2d DCA 2011). See also Lee v. State, 67 So.3d 1199 (Fla. 2d DCA2011); Ware v. State, 54 So.3d 1074 (Fla. 1st DCA 2011). But see Meltonv. State, 65 So.3d 96 (Fla. 1st DCA 2011)(court reversed on one finding andaffirmed on the other, but remanded for resentencing because the record wasnot clear that the court would have imposed the same sentence based solelyon the finding that was upheld).

6. A violation of probation order must conform to the oral pronouncementof the court. Dollison v. State, 526 So.2d 1074 (Fla. 2d DCA 1988);Williams v. State, 528 So.2d 127 (Fla. 3d DCA 1988); Cahill v. State, 526So.2d 220 (Fla. 4th DCA 1988); Carson v. State, 531 So.2d 1069 (Fla. 4thDCA 1988); Boggs v. State, 557 So.2d 203 (Fla. 2d DCA 1990).

7. Where the defendant was ordered to pay restitution according to a

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certain schedule on the record, the fact that the schedule was not includedin the written order did not eliminate that condition. Francois v. State, 923So.2d 1219 (Fla. 3d DCA 2006)

8. The written order revoking probation found the defendant guilty of sixviolations; but the court orally found the defendant guilty of only threeviolations. The written order must be consistent with the oralpronouncement. Brown v. State, 659 So.2d 1260 (Fla. 4th DCA 1995).

9. Rule 3.720 directs the court to allow a party to present submissions andevidence at sentencing. The trial judge did not violate this provision when herefused to postpone sentencing upon revoking defendant's probation at theconclusion of a hearing, but offered the defendant the opportunity to presentany matter she wished in mitigation. Manigault v. State, 534 So.2d 856 (Fla.1st DCA 1988).

10. Where the trial judge entered a written order of revocation finding that thedefendant was guilty of specific violations of probation the order ofrevocation was invalid because the judge did not make express oralfindings as to the violations. Harrington v. State, 570 So.2d 1141 (Fla. 4thDCA 1990).

11. It is improper for the trial judge to impose one general sentence on severalcharges. There must be distinct sentences. There must be a discrete sentenceon each offense. Klibe v. State, 569 So.2d 943 (Fla. 4th DCA 1990).

12. The trial judge must state in a written order the basis for a revocation ofprobation, although that may not be necessary if the record “conclusivelyestablishes that appellant violated all of the conditions alleged to havebeen violated in the affidavit.” Boynton v. State, 622 So.2d 87 (Fla. 1stDCA 1993).

13. The failure to specify violations found by the court to have been provenrequires reversal and remand. Sconiers v. State, 651 So.2d 758 (Fla. 1stDCA 1995); Wells v. State, 651 So.2d 759 (Fla. 1st DCA 1995).

14. Where the affidavit alleged several violations, it was not sufficient for thetrial judge to state that the defendant had been found guilty of theviolations as alleged in the affidavit where there was no evidencepresented as to some of the allegations. Snell v. State, 658 So.2d 1165(Fla. 2d DCA 1995).

15. In this case the written order revoking probation was not entered until after

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the notice of appeal was filed. The appellate court acknowledged that it waswell taken that the trial judge had no jurisdiction to enter the order.Nevertheless, the court affirmed and declined to remand. “We distinguishthe present case from Eckhart v. State, No. 95-1381, 1996 WL 5141 (Fla.1st DCA Jan. 8 1996); Wood v. State, 653 So.2d 493 (Fla. 1st DCA 1995),and Wiggers v. State, 652 So.2d 1294 (Fla. 1st DCA 1995), where weaffirmed but remanded because no written order of revocation ofprobation had been entered. Here a written order in which the trialcourt memorialized his reasons for revocation is already of record andno purpose would be served by a remand.” Jacobs v. State, 668 So.2d 294(Fla. 1st DCA 1996).

16. The affidavit alleged multiple violations of community control, but the orderof revocation erroneously failed to specify which ones the court found thedefendant had committed. Montonez v. State, 724 So.2d 650 (Fla. 2d DCA1999).

17. “Lacey’s fourth contention in appeal is that the written sentencing order wasdeficient for failing to specify the particular grounds supporting therevocation. Lacey relies on Aidone v. State, 763 So.2d 1127 (Fla. 4th DCA1999) where this court reversed an order revoking probation for lack ofspecificity. In Aidone, this court held that ‘[w]hen revoking probation, a trialcourt must at least specify which conditions of probation have been violated,and should also relate evidence or reasons supporting the judge's findings.’Id. (Citing Taylor v. State, 681 So.2d 910 (Fla. 4th DCA 1996)). In Aidone,this court commented on the fact that the probation was revoked without thetrial court making specific findings. Id. This case is distinguishable fromAidone. In the case at bar, although absent from the written order, thetrial court made clear findings on the record. Thus, we find Lacey'sargument on this point unpersuasive and conclude that the written order wasnot deficient.” Lacey v. State, 831 So.2d 1267 (Fla. 4th DCA 2002).

18. It is improper for a judge other than the one who heard the evidence, tosign the judgment finding the defendant guilty of violations of probation.Acker v. State, 823 So.2d 875 (Fla. 2d DCA 2002).

19. As a matter of due process, the defendant is entitled to a writtenstatement by the factfinder as to the reason for the revocation andevidence relied on. Staley v. State, 851 So.2d 805 (Fla. 2d DCA 2003).

20. The trial judge did the probation hearing at the same time as a hearing on amotion to suppress on new charges. The judge granted the motion tosuppress, but revoke the probation. Furthermore, the order simply said that

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the probation was revoked. The court reversed. “While some admissibleevidence was also offered to support the revocation, the lack of a properwritten order prevents any meaningful review of the trial court’sdecision. Accordingly, we reverse and remand for a new revocationhearing. If the trial court again revokes Jacobs' probation, it must entera proper written order that sets forth the conditions the trial court findswere violated. See Montonez v. State, 724 So.2d 650, 651 (Fla. 2d DCA1999); Donley v. State, 557 So.2d 943, 945 (Fla. 2d DCA 1990).” Jacobs v.State, 848 So.2d 1287 (Fla. 2d DCA 2003).

21. The defendant’s admission to failing to report one time was sufficient to finda violation, but since there were other violations that the trial courtfound, which were reversed, the matter had to be remanded to see if thetrial judge would have found that violation to be substantial. Warren v.State, 924 So.2d 979 (Fla. 2d DCA 2006). See also Glover v. State, 17So.3d 886 (Fla. 4th DCA 2009).

22. If the court revokes probation based on several grounds and the court reverseson one ground, but the appellate court cannot tell whether the trial judgewould have revoked based on the other grounds it will remand for thetrial judge to make that determination. Faircloth v. State, 50 So.3d 788(Fla. 1st DCA 2010).

23. “Because we are unable to determine whether the trial court would haverevoked Royal's probation based solely on the evidence of the new lawviolation, we reverse and remand for reconsideration.” Royal v. State,996 So.2d 948 (Fla. 2d DCA 2008).

24. The court found that the trial judge erred as to one finding, but not as toothers. Nevertheless, the court remanded because it was unclear whetherthe court would have revoked probation based on the sustainedviolation. Bishop v. State, 21 So.3d 830 (Fla. 1st DCA 2008). See alsoCasas v. State, 27 So.3d 203 (Fla. 2d DCA 2010); Easterling v. State, 989So.2d 1285 (Fla. 1st DCA 2008).

25. The court affirmed the revocation of probation, but disapproved of some ofthe procedures. “The trial court orally revoked Mr. Dawkins’ communitycontrol and sentenced him to the thirty-six months’ imprisonment originallyimposed in the true split sentence. No final order revoking Mr. Dawkins’community control was entered. Instead, on April 21, 2005, the trial courtentered a second judgment of conviction for the two offenses.... Without arendered order of revocation, Mr. Dawkins appeals only his sentence.... Anorder revoking probation (including community control) is expressly

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appealable under section 924.06(1)(c), Florida Statutes (2005). Without suchan order in the record, at least in the absence of a transcript of the violationhearing, a criminal court file contains no document demonstrating the legalauthority of the trial court to impose a new sentence. Technically, an orderrevoking probation is not appealable until it is rendered. When a judgerenders such an order, he or she is required to inform the defendantconcerning the right of appeal. See Fla. R.Crim. P. 3.670. By failing toenter an order of revocation, the trial court is leaving a case in limbo. Byentering a second judgment of conviction, the trial court may be restarting thetwo-year period for post-conviction relief under Florida Rule of CriminalProcedure 3.850. The second judgment may also create confusion in thepublic record as to the number of prior offenses committed by thedefendant.” Dawkins v. State, 936 So.2d 710 (Fla. 2d DCA 2006). See alsoJackson v. State, 56 So.3d 65 (Fla. 2d DCA 2011).

26. The trial court specifically identified on the record the conditions that thedefendant had violated, but the written order did not conform to the oralfindings. “Clearly, the written order does not comport with the trialcourt’s oral pronouncement, which did include specific findings as tospecific conditions. Moreover, the written order is facially deficientbecause it does not set forth the conditions violated. (Citations omitted).Therefore, we remand for the trial court to enter a corrected written order ofrevocation that specifies the conditions violated as found at the hearing.”Smith v. State, 940 So.2d 530 (Fla. 2d DCA 2006).

27. Failure to enter a written order specifying the conditions the defendantviolated, requires that the case be remanded with instructions that awritten order be entered. Peterson v. State, 962 So.2d 367 (Fla. 4th DCA2007). See also Moncrieffe v. State, 17 So.3d 850 (Fla. 4th DCA 2009).

28. Rule “3.700(c)(1) requires that a judge who did not take the plea or presideat the trial of a defendant must familiarize himself or herself with priorproceedings before making sentencing decisions. However, while rule3.700(c) applies to initial sentencing hearings, it does not extend toviolation of probation proceedings. (Citations omitted) Thus, the judgewho tries the violation of probation case is not a successor judge withinthe contemplation of the rule. Furthermore, .... just as a trial judge considersa past criminal record in determining the appropriate sentence, so too a trialjudge may consider a probationer’s past probation record in determiningwhether to revoke for the violation or impose some lesser sanction.”Kaduk v. State, 959 So.2d 817 (Fla. 4th DCA 2007). See also Craig v.State, 45 So.3d 1 (Fla. 3d DCA 2010).

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29. It is reversible error for the court to fail to specify what condition thedefendant violated in its order revoking probation. McRae v. State, 88So.3d 384 (Fla. 2d. DCA 2012)

B. Sentencing options.

1. Revoke probation & impose any sentence that could have originally beenimposed. §948.06, Fla. Stat.

a. See changes above that apply to certain violent felons under theAnti-Murder Act.

b. Sentence imposed after revocation of probation is not a sentenceon a violation of probation, but rather a resentence on theoriginal charge and the court may impose any sentence that itcould have originally imposed. Lee v. State, 54 So.3d 573 (Fla. 1stDCA 2011).

c. Trial court did not have to order execution of five year suspendedsentence. “It is evident that the court misunderstood its options.The court did not have only one recourse but was authorized to‘revoke, modify, or continue the probation or community controlor place the probationer into a community control program’”Cowart v. State, 860 So.2d 1041 (Fla.5th DCA 2003).

d. The court relied on Cowart in support of holding that the trial judgeerred in concluding that the only option was to impose the previouslysuspended sentence. The court could have continued, modified, orrevoked probation and could have imposed less than the originalsentence. Casey v. State, 50 So.3d 782 (Fla. 2d DCA 2010).

e. “A judge may withhold an adjudication of guilt only if thedefendant is placed on probation. Fla. R.Crim. P. 3.670.” Pursuantto §948.06(1) if the defendant successfully completes the terms ofprobation, the defendant “is not a convicted person.” “However, ifprobation is revoked, the defendant must be adjudicated guiltyof the charged offense.” State v. Gloster, 703 So.2d 1174 (Fla. 1stDCA 1997). See also State v. McFadden, 772 So.2d 1209 (Fla.2000); Cella v. State, 831 So.2d 716 (Fla. 5th DCA 2002).

f. The court sentenced the defendant to a withhold, time served, andwaived costs. On appeal, the court reversed. Pursuant to “Fla.R.Crim. P. 3.670. Sylvio’s sentence of withhold and waive, without

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also placing him on probation, is not authorized by the law, and,therefore, must be reversed.” State v. Sylvio, 846 So.2d 1271 (Fla.4th DCA 2003).

g. “Upon violating probation, a defendant cannot be sentenced to aterm that could not have been validly imposed at the time ofinitial sentencing.” This was a guidelines case. Gibbs v. State, 667So.2d 371 (Fla. 1st DCA 1995).

h. The combined period of jail and probation cannot exceed thestatutory maximum on a violation of probation. Glass v. State, 556So.2d 465 (Fla. 1st DCA 1990).

i. “When the court imposes a subsequent term of supervision followinga revocation of probation or community control, it shall not providecredit for time served while on probation or community controltoward any subsequent term of probation or community control.However, the court may not impose a subsequent term ofprobation or community control which, when combined with anyamount of time served on preceding terms of probation orcommunity control for offenses before the court for sentencing,would exceed the maximum penalty allowable as provided by s.775.082. No part of the time that the defendant is on probation or incommunity control shall be considered as any part of the time that heor she shall be sentenced to serve.” §948.06(3), Fla. Stat.

j. The defendant was sentenced to one year of probation and 60 days injail on an indirect criminal contempt. He was denied a jury trial.“[E]ven though [the defendant’s] sentence involved a one yearprobationary term, his total maximum term of imprisonmentwould still be six months even on a probation violation.” Wells v.State, 654 So.2d 146 (Fla. 3d DCA 1995). See also Gordon v. State,960 So.2d 31 (Fla. 4th DCA 2007).

k. It was improper for the court to impose a judgment lien for restitutionon one case as part of the sentence on a violation of probation onanother case, where the probation on the case relating to therestitution had expired and there was no reference to that case in theaffidavit for the violation in the case on which the sentence was beingimposed. The court noted that the offense on which therestitution had been awarded occurred before the effective dateof §960.292(2), Florida Statutes (1995), which providescontinuing jurisdiction to enter a restitution lien. Alberts v.

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State, 711 So.2d 635 (Fla. 2d DCA 1998), overruled on othergrounds, Goad v. Fla. Department of Corrections, 845 So.2d 880(Fla. 2003).

l. Upon revocation of probation the defendant could challenge theinclusion of victim injury points in his sentencing score, eventhough the defendant had not challenged them at the original sentenceor on appeal. This conflicts with Fitzhugh v. State,698 So.2d 571(Fla. 1st DCA 1997). Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA1999); approved, Tasker v. State, 48 So.3d 798 (Fla. 2010).

m. The defendant was originally sentenced to concurrent prison terms onseveral charges to be followed by a term of probation. None of thetime was suspended. On a violation of probation, it was proper forthe court to sentence the defendant to consecutive prison time.McCaskill v. State, 728 So.2d 1183 (Fla. 5th DCA 1999).

n. “Earl Coney challenges the sentences in seven cases where hisprobation was revoked. In one case, the circuit court sentenced Coneyto five years in prison to run consecutively with six concurrentfive-year sentences. When a defendant is sentenced to a probationarysplit sentence-i.e., a term of incarceration, none of which issuspended, followed by a period of probation-the defendant may beresentenced to any term up to the maximum which could have beenoriginally imposed upon a violation of probation. See McCaskill v.State, 728 So.2d 1183 (Fla. 5th DCA 1999). In this case, the July 3,2002 sentencing order demonstrates that Coney was originallysentenced to probationary split sentences, so that his consecutivesentence was proper under McCaskill.... This is not a caseinvolving a ‘true split sentence,’ which is a term of incarceration, aperiod of which is suspended subject to completion of probation. SeeTowbridge v. State, 564 So.2d 604 (Fla. 3d DCA 1990).”Coney v.State, 941 So.2d 592 (Fla. 4th DCA 2006).

o. “Because Boone was initially given a ‘true split sentence,’ he couldnot be sentenced upon revocation of his probation to a period thatexceeded the original ten-year sentence, with credit for time served.Mack v. State, 823 So.2d 746 (Fla.2002). As explained in Mack:‘[W]hen a sentencing court imposes a true split sentence, thejudge has effectively sentenced the defendant in advance for aprobation violation and is not later permitted to change his or hermind. Upon revocation of probation, the court may not order thedefendant incarcerated for a period exceeding the suspended

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portion because to do so would be a violation of the doublejeopardy clause.’ Id. at 748 n. 3.” Boone v. State, 967 So.2d 999(Fla. 5th DCA 2007). See also Green v. State, 4 So.3d 44 (Fla. 1stDCA 2009).

p. Misdemeanors.

(1) The defendant was placed on probation for two first degreemisdemeanors. Later he pled no contest to violating hisprobation and was sentenced to consecutive one year termsin the county jail. The court found the sentences to be valid.The one year limitation only applies where a felony isinvolved. Armstrong v. State, 656 So.2d 455 (Fla. 1995).

(2) The Armstrong decision does not apply to the situationwhere the defendant is given county jail for a felony andmisdemeanors. In that case, the court cannot sentence thedefendant to more than 1 year county jail on anymisdemeanor. If, however, the court does not sentence thedefendant to county jail on the felony, then the court canimpose consecutive 1 year terms on the misdemeanors. Statev. Troutman, 685 So.2d 1290 (Fla.1996).

(3) On a reckless driving charge, the judge entered a pretrial orderstating that if there was a conviction, incarceration wouldnot be imposed. The defendant was convicted and placed onprobation. Subsequently, on a violation of probation the judgesentenced him to 30 days of weekend work release. The courtcertified a question to the district court as to whether underthese circumstances could the trial judge on a subsequentfinding of violation of probation adjudicate guilt and imposeimprisonment? “Applying the clear language of the statute,we conclude that once a county court has ordered that adefendant will not be incarcerated and denied thatdefendant a jury trial based on that commitment, it maynot later impose incarceration for a violation of probation.Additionally, section 948.06(1), Florida Statutes (1997),provides that upon a revocation of probation, the trialcourt may ‘impose any sentence which it might haveoriginally imposed before placing the probationer oroffender on probation.’ Because the ‘order of non-imprisonment’ eliminated incarceration as a sentence forthe underlying offense, incarceration could not be

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imposed on a subsequent violation of probation.” Thecourt did not address the adjudication of guilt. Blankenbakerv. State, 744 So.2d 573 (Fla. 2d DCA 1999).

(4) The defendant was charged with a first degree misdemeanor.The trial judge stated that there would be no jail sentence.Based on that statement the court conducted a nonjurytrial and did not appoint counsel. After the court convictedthe defendant, the court imposed a term of probation. On aviolation, the public defender was appointed and the courtsentenced the defendant to a jail term. On appeal, the circuitcourt upheld the sentence, but the district court reversed. Thecourt noted that the defendant was entitled to a jury trial andto court appointed counsel in the original proceeding. “Evenif the county court’s denial of the right to a jury trial andof counsel at trial were not considered a statutoryviolation ... the court still could not impose imprisonmentupon violation of probation because it could not haveimposed it originally.” Harris v. State, 773 So.2d 627 (Fla.4th DCA 2000).

(5) The trial judge discharged the public defender on a first timeDUI at the original proceeding, because there was not goingto be a jail sentence. On a violation of probation, the courtruled that the court could not impose jail because it couldnot have originally imposed it. The court also noted thatsentencing after a probation revocation is merely adeferred sentence. Tur v. State, 797 So.2d 4 (Fla. 3d DCA2001).

(6) The defendant entered a plea and was placed on probation formisdemeanor worthless check. She was indigent and wasunrepresented at the time. She was violated and sentencedto 364 days in jail. The defense position was that she couldnot be sentenced to jail for a VOP because she could not havebeen sentenced to jail originally because she wasunrepresented. The State argued that the defendant hadwaived her right to counsel when she entered her plea. Thecircuit judge who considered a Petition for Habeas Corpusfiled by the defendant agreed. On appeal, the court reversed.The original “plea form was deficient because it ‘providedthe misleading impression that an indigent criminaldefendant lacks a right to counsel so long as the trial

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judge is not currently considering jail time as anappropriate sentence.’ Kelly, 999 So.2d at 1036. Nothingin the mass plea colloquy or Finney’s individual pleacolloquy cured this error. See id. (Holding that a ‘properlyexecuted on-the-record plea colloquy]’ could cure thistype of deficient plea form). In fact, the mass pleacolloquy contained conflicting and confusing informationthat could have led Finney to believe she was only entitledto counsel if she entered a not guilty plea.” Finney v.State, 9 So.3d 741 (Fla. 2d DCA 2009).

o. Felonies: New charges, violations of probation, & guidelines. SeeMoses v. State, 13 So.3d 490 (Fla. 4th DCA 2009).

p. Split sentences involving suspended prison time.

(1) A term of imprisonment followed by probation is aprobationary split sentence. With such a sentence, uponviolation of probation the defendant can be sentenced to anysentence the court could have originally imposed. Wright v.State, 560 So.2d 1371 (Fla. 5th DCA 1990). See also Brownv. State, 826 So.2d 1101 (Fla. 5th DCA 2002); Boyd v.State, 538 So.2d 517 (Fla. 1st DCA 1989).

(2) A sentence of six years imprisonment with two yearssuspended and the defendant placed on probation for thosetwo years is a “true split sentence” and upon a violation ofprobation the defendant can only be sentenced to servethe two years. Drayton v. State, 549 So.2d 698 (Fla. 4thDCA 1989); See also Williams v. State, 780 So.2d 244 (Fla.2d DCA 2001); Nelson v. State, 753 So.2d 673 (Fla. 2d DCA2000); Ashe v. State, 548 So.2d 291 (Fla. 4th DCA 1989).

(3) The defendant was sentenced to twelve years imprisonment,suspending the sentence after five years and placing him onprobation for the balance of the term of imprisonment. Thiswas a true split sentence and when he violated his probationhe could not be sentenced to any more than the five years.Priest v. State, 603 So.2d 141 (Fla. 4th DCA 1992).

(4) Where the original sentence was jail followed by a term ofprobation, the court could impose any sentence itoriginally could have imposed on a violation of probation.

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Tate v. State, 544 So.2d 1127 (Fla. 4th DCA 1989).

(5) W here the entire period of incarceration was suspended andprobation imposed, the sentence was a “true split sentence”and only the original term of incarceration could be imposedon a violation of probation. Helton v. State, 611 So.2d 1323(Fla. 1st DCA 1993). See also Cook v. State, 880 So.2d 771(Fla. 2d DCA 2004)(where the court sentenced defendant to47 months in prison suspended and two years communitycontrol for a violation of probation, it could not sentence herto any more than 47 months on a voc).

(6) A term of imprisonment followed by probation is aprobationary split sentence. With such a sentence uponviolation of probation the defendant can be sentenced to anysentence the court could have originally imposed. Wright v.State, 560 So.2d 1371 (Fla. 5th DCA 1990) See also Brooksv. State, 762 So.2d 1011 (Fla. 5th DCA 2000).

(7) The defendant was given two years in prison, but it wassuspended on the condition that he serve three yearsprobation. He failed to successfully complete the probation.He was sentenced to four and one-half years in prison. Onappeal, the court ruled that this was error. “The originalsuspended sentence is not a legally recognized splitsentence under Poore v. State, 531 So.2d 161 (Fla. 1988).”The defendant did not challenge the sentence. Thus, the courthad to deal with it. The court found that no additional timecould be imposed because he had already been sentenced toprison. Jones v. State, 671 So.2d 296 (Fla. 5th DCA 1996).

(8) “Upon a violation of probation of a true split sentence, thetrial court may not order new incarceration that exceedsthe remaining balance of the suspended term.” Forinstance, the defendant was sentenced to 20 years prison, tobe suspended after 3 years and probation to be imposedduring the suspended period. The maximum term of prison ona violation was 17 years. Stackhouse v. State, 658 So.2d1118 (Fla. 2d DCA 1995). See also Lovett v. State, 795So.2d 1135 (Fla. 5th DCA 2001).

(9) The defendant was originally sentenced to serve 5 years inprison, to be followed by 2 years probation. The defendant

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served the 5 years and then was found to have violated hisprobation. He was sentenced to serve 12 years in prison. Thedefendant argued that the sentence on the violation was abreach of the original plea agreement and that onrevocation the trial judge could impose no more than theoriginal sentence. Based on § 948.06(1) this position waswithout merit, because the sentence was within the rangethat could have originally been imposed. Davis v. State,680 So.2d 527 (Fla. 1st DCA 1996).

(10) The original sentence was a “‘true split sentence.’” It wasnine years prison, with prison suspended after three years andthe balance to be spent on probation. “Upon the violation ofprobation, the trial judge could not impose a new periodof incarceration, which exceeded the remaining balance ofthe suspended portion of the original sentence.”Burroughs v. State, 688 So.2d 416 (Fla. 2d DCA 1997). Seealso Brooks v. State, 762 So.2d 1011 (Fla. 5th DCA 2000);Lawton v. State, 711 So.2d 142 (Fla. 2d DCA 1998).

(11) The defendant was sentenced to twelve months probation inlieu of a suspended term of thirty days in the county jail.He was violated and admitted the violation. At that time thecourt sentenced the defendant to 37 days in the county jail tobe followed by two years felony drug probation. On appeal,the court held that the maximum sentence the defendantcould receive was thirty days in jail. Since the originalsentence was a true split sentence as defined in Poore v. State,531 So.2d 161 (Fla. 1988), the court could impose no greaterterm than the suspended sentence. “As the state contends,the sentence in this case is not precisely the same kind oftrue split sentence the court was referring to in Poore.Here, the probationary term was longer than the jail term,not just a portion of it. Despite these differences, however,the sentence in this case is a true split sentence....Although, the opinion in Poore refers to the limits on anew term of ‘incarceration’ following a revocation, theimposition of a true split sentence also precludes the trialcourt from placing a defendant on probation for a periodof time that exceeds the unserved portion of a suspendedsentence.... We conclude that the suspended thirty-daysentence was a built-in sanction for failure to comply withthe terms and conditions of probation.” Evans v. State,

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730 So.2d 768 (Fla. 1st DCA 1999). See also Snell v. State,845 So.2d 323 (Fla. 1st DCA 2003).

(12) A true split sentence is one where the defendant is sentencedto a term of confinement, part of which is suspended, and thedefendant is placed on probation for that suspended portion.A probationary split sentence is one where the defendant issentenced to a jail or a prison term followed by a term ofprobation. On a violation of probation where the defendantwas sentenced to a true split sentence, the court mayeither impose the suspended portion of the sentencewithout credit for time served or impose the originalsentence with credit for time served. Moore v. Stephans,804 So.2d 575 (Fla. 5th DCA 2002). See also Mann v State,109 So.3d 1202 (Fla. 5th DCA 2013).

(13) “Lacey’s second argument on appeal is that the trial courterroneously felt obligated to impose the suspendedsentence originally imposed when probation was granted.We agree and reverse and remand.... We now hold thatunder Poore, whether the original sentence was a true splitsentence or a probationary split sentence has no bearing onwhether the judge was bound to the original sentence. If thesentence was a true split sentence, as the trial court found,then under Poore the sentencing judge ‘in no instance mayorder new incarceration that exceeds the remainingbalance of the withheld or suspended portion of theoriginal sentence.’ This puts a cap on what the judge maysentence, but in no way indicates that there is nodiscretion. On the other hand, if this was a probationary splitsentence, as defense counsel argues, than under Poore, thejudge was allowed to impose any sentence he or she originallymight have imposed. In either scenario, there is nothingobligating the judge to the original sentence.” Lacey v. State,831 So.2d 1267 (Fla. 4th DCA 2002).

(14) Mr. Broughton argues that the sentences originally imposedwere true split sentences. That is incorrect. “A ‘true splitsentence’ consists of a total period of confinement with aportion suspended and the defendant placed on probationfor the suspended portion. Poore v. State, 531 So.2d 161,164 (Fla.1988). Upon violation of probation, the trial courtmay impose only the remainder of the suspended portion

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of the sentence. Id.... The trial court sentenced Mr.Broughton to 364 days in county jail, ‘suspended oncein-jail drug treatment is completed,’ followed bytwenty-four months of drug offender probation. Thesentencing order demonstrates that the trial court limitedthe incarceration period to a term necessary to completethe drug treatment program. The trial court’s originalsentences allowed Mr. Broughton to complete his jail timefaster by cooperating with the in-jail drug treatment program.Upon completion of the drug treatment program, Mr.Broughton’s period of confinement ended; there remainedno suspended portion of the sentences. Accordingly, eachof his initial sentences was a ‘probationary split sentence.’See Poore, 531 So.2d at 164. Following the revocation of Mr.Broughton’s probation, the trial court could have imposed anysentence it might have originally imposed upon him. See §948.06(1); Poore, 531 So.2d at 164.” Broughton v. State,929 So.2d 1130 (Fla. 2d DCA 2006).

q. Youthful offenders.

(1) Once a defendant is classified as a youthful offenderpursuant to §958.14 he must be treated as such on aviolation of probation or community control. State v.Watts, 558 So.2d 994 (Fla. 1990).

(2) Pursuant to § 958.14 once a defendant is sentenced as ayouthful offender, he or she cannot be sentenced to any morethan six years on a violation of probation or communitycontrol. Gardner v. State, 656 So.2d 933 (Fla. 1st DCA1995).

(3) Once a defendant is sentenced as a youthful offender hecannot be sentenced to any more than six years incarceration.§958.04(2)(c) specifically provides that, “the period ofincarceration imposed or served and the period of probationor community control, when added together shall not exceed6 years for youthful offenders.” O’Neal v. State, 667 So.2d413 (Fla. 4th DCA 1996).

(4) A person sentenced as a youthful offender cannot besentenced to more than a total of six years on a revocation fortechnical violations. “A youthful offender can be sentenced

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in excess of six years after revocation of probation if theviolation was substantive.” Dunbar v. State, 664 So.2d1093 (Fla. 2d DCA 1995).

(5) The six year cap did not apply on a violation of probationwhere the defendant committed a substantive offense. Herethe defendant was on youthful offender probation for DUIManslaughter and tested positive for marijuana. Thatconstituted a substantive offense, which met that theoffender could be sentenced to the maximum penalty onthe DUI Manslaughter. Thompson v. State, 945 So.2d 627(Fla. 4th DCA 2006). But this is within the discretion of thecourt as are any minimum terms. Goldwire v. State, 73So.3d 844 (Fla. 4th DCA 2011).

(6) § 958.14 says that on a violation of probation or communitycontrol, the youthful offender shall be subject to §948.06(1).However, if the offense was substantive, the statute providesfor a period of incarceration no longer than the maximumsentence for which he or she is found guilty. If it was atechnical or nonsubstantive violation, the maximum sentenceis six years or the maximum for the involved charge,whichever is less. A “substantive violation” under section958.14, Florida Statutes, requires the commission of aseparate criminal offense by a youthful offender. State v.Meeks, 789 So.2d 982 (Fla. 2001).

(7) The decision in Meeks was distinguished. The court ruledthat the defendant could only be sentenced as a youthfuloffender because he had completed boot camp, and §958.045(5)(c), specifically applied. The ruling in Meeks wasinapplicable. Pursuant to Bloodworth v. State, 769 So.2d 1117(Fla. 2d DCA 2000) and Thomas v. State, 825 So.2d 1032(Fla. 1st DCA 2002), the defendant could only be sentencedto 364 days. Mims v. State, 871 So.2d 1003 (Fla. 1st DCA2004). See also Cutler v. State, 927 So.2d 249 (Fla. 2d DCA2006); Fettler v. State, 885 So.2d 411 (Fla. 1st DCA 2004);Blaxton v. State, 868 So.2d 620 (Fla. 2d DCA 2004)(“courtcannot impose probation as a condition of probation”).

(8) One court holds that the decision in Mims and Blaxton, do notapply where the offender is ordered to a county boot campprogram rather than one under the supervision of DOC.

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Therefore, the court upheld a 36 month sentence on aviolation of community control even though the offender hadsuccessfully completed a county boot camp. Lee v. State, 884So.2d 460 (Fla. 4th DCA 2004).

(9) It was improper to sentence the youthful offender to sixyears on a violation of community control on a technicalviolation where the maximum penalty on the offense wasfive years. Quiles v. State, 777 So.2d 992 (Fla. 2d DCA2000).

(10) Once the defendant successfully completed boot camp hecould not be sentenced to more than 364 days incarceration ona violation of probation, and he was entitled to credit for alltime served in jail prior to going to boot camp against that364 days. Fettler v. State, 885 So.2d 411 (Fla. 1st DCA2004).

(11) A new criminal offense can constitute a substantive violationfor purposes of a guidelines departure even if the State filesa nolle prosequi. Swilley v. State, 781 So.2d 458 (Fla. 2dDCA 2001).

(12) An new offense need not be separately charged for it to bethe basis for a substantive violation of probation.Christian v. State, 84 So.3d 437 (Fla. 5th DCA 2012)(Theopinion suggests that this may conflict with the decision inRogers v. State, 972 So.2d 1017 (Fla. 4th DCA 2008)).

(13) Even where a person classified as a Youthful Offendercommits a substantive violation (meaning a new offense) sothat he/she can be sentenced to more than six years, he/shedoes not lose the Youthful Offender status for otherpurposes. Mistretta v. State, 99 So.3d 561 (Fla. 2d DCA2012); Jacques v. State, 95 So.3d 419 (Fla. 3d DCA 2012);Yegge v. State, 88 So.3d 1058 (Fla. 2d DCA 2012);Christian v. State, 84 So.3d 437 (Fla. 5th DCA 2012).

r. Sexual offenders or predators.

(1) “If probation or community control for any felony offense isrevoked by the court pursuant to s. 948.06(2)(e) and theoffender is designated as a sexual offender pursuant to s.

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943.0435 or s. 944.607 or as a sexual predator pursuant to s.775.21 for unlawful sexual activity involving a victim 15years of age or younger and the offender is 18 years of age orolder, and if the court imposes a subsequent term ofsupervision following the revocation of probation orcommunity control, the court must order electronicmonitoring as a condition of the subsequent term ofprobation or community control.” §948.063(1), Fla. Stat.

(2) “If the probationer or offender is required to register as asexual predator under s. 775.21 or as a sexual offender unders. 943.0435 or s. 944.607 for unlawful sexual activityinvolving a victim 15 years of age or younger and theprobationer or offender is 18 years of age or older and hasviolated the conditions of his or her probation or communitycontrol, but the court does not revoke the probation orcommunity control, the court shall nevertheless modifythe probation or community control to include electronicmonitoring for any probationer or offender not thensubject to electronic monitoring.” §948.063(2), Fla. Stat.

(3) The foregoing provisions apply to all felonies and notmerely sexual offenses. The defendant was a registered sexoffender. The defendant was on probation for a felony drivingcharge. He was accused of violating probation. On a plea tothe violation the court modified probation rather thanrevoked. The court held that the provision requiringelectronic monitoring applied to the violation even thoughthe court did not revoke probation. Fields v. State, 968So.2d 1032 (Fla. 5th DCA 2007).

s. Sentencing on financial matters.

(1) The decision in Hewett v. State, 588 So.2d 635 (Fla. 5thDCA 1991), was quashed. In that case the Court held that,pursuant to §948.06(4), probation could be extended forfailure to pay restitution even though the defendant hadmade a good faith effort to pay. The Court said: “[W]e donot read the above statute as authorizing any extension ofprobation based on simple inability to pay restitution.Rather, the trial court has the choice only of ‘alternatemeasures’ or imprisonment, with the latter being stronglydisfavored. There is no ability to extend probation in the

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absence of wilful violation of the terms of probation.Clark. Had the legislature intended the term ‘alternatemeasures’ to include coercive forms of detention orcontrol, we believe it would have said so expressly.” Themeasures contemplated include community service “orsimilar measures falling short of more coercive measuressuch as community control, probation, or imprisonment.”If the defendant fails to comply with the alternate measurethen he or she may be subject to contempt proceedings or aprobation violation if any probation remains. “Anotheralternative might be entry of a judgment against theprobationer, which could then be enforced against theprobationer's property under the applicable law.” Hewettv. State, 613 So.2d 1305 (Fla. 1993).

(2) Where failure to pay restitution is not willful, the term ofprobation cannot be extended for nonpayment. Laing v.State, 622 So.2d 560 (Fla. 3d DCA 1993).

(3) “[B]efore a person on probation can be imprisoned forfailing to make restitution, there must be a determinationthat person has, or has had, the ability to pay but haswillfully refused to do so.” This is true even if the personagreed to waive the issue of ability to pay as part of a pleaagreement if the defendant did not initiate that action.Stephens v. State, 630 So.2d 1090 (Fla. 1994).

t. Habitual offender treatment.

(1) If the state did not seek an enhanced penalty nor file its noticeof intent to habitualize prior to the original plea, then on aviolation of probation the defendant cannot behabitualized because such a sentence could not have beenimposed at the original sentencing hearing. Snead v. State,616 So.2d 964 (Fla. 1993).

(2) In order to sentence the defendant as an habitual offender atthe time of the original sentence, notice must be given priorto entry of a plea. Since no notice was given until after entryof the plea, the defendant could not be sentenced as a habitualoffender on a subsequent violation. Armstrong v. State, 622So.2d 576 (Fla. 5th DCA 1993).

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(3) Based on the decision in Snead the defendant could not betreated as an habitual offender on a violation because therehad been no notice of intent to habitualize at the time of theoriginal sentencing. Anderson v. State, 665 So.2d 367 (Fla.4th DCA 1996).

(4) The defendant could not be treated as an habitualoffender after a violation because he was not habitualizedor given notice prior to the original sentence. He did notwaive the point by agreeing to the habitual offender sentencebecause it was an illegal sentence. Jefferson v. State, 657So.2d 14 (Fla. 4th DCA 1995); quashed on other grounds,665 So.2d 1057 (Fla.1996).

(5) Once the trial judge decided that a habitual violent felonyoffender sentence was inappropriate, the judge could notimpose such a sentence on a violation of communitycontrol. Spencer v. State, 739 So.2d 1247 (Fla. 1st DCA1999).

(6) After a trial judge makes a valid finding that a defendant is anhabitual felony offender and imposes a non-habitual offendersentence of prison, followed by probation, and the defendantserves the prison term, but later violates his probation, thetrial judge may not resentence as an habitual felonyoffender. King v. State, 681 So.2d 1136 (Fla. 1996), recededfrom on other grounds, Carter v. State, 786 So.2d 1173 (Fla.2001). See also Chaney v. State, 805 So.2d 1039 (Fla. 2dDCA 2002).

(7) Where a defendant was sentenced originally as a habitualoffender on a third degree felony to five years imprisonment,followed by three years probation, he could only be sentencedto ten years imprisonment on a revocation of probation. Hecould not be sentenced to fifteen years of imprisonment. Hewas not entitled to credit for the probation that he hadserved because no new term of probation was imposed.Waters v. State, 662 So.2d 332 (Fla. 1995). Sims v. State,688 So.2d 337 (Fla. 2d DCA 1996).

(8) If the defendant is not habitualized prior to a plea, thedefendant cannot subsequently be sentenced as a habitualoffender on a violation of probation. Sohl v. State, 710

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So.2d 676 (Fla. 5th DCA 1998).

(9) Where the State filed a notice to seek habitualization and thetrial court specifically found that the defendant qualified as a“habitual felony offender,” but did not impose probationpursuant to the habitual offender statute, the defendantcould not be sentenced as a habitual offender on aviolation of probation. Powell v. State, 774 So.2d 869 (Fla.1st DCA 2000).

(10) A defendant can be sentenced as an habitual offenderfollowing a violation of probation, where the defendant’soriginal sentence, imposed pursuant to plea agreementcontemplating habitual offender treatment, was withinguidelines range, but the defendant was declared at theoriginal sentencing to be an habitual offender. Terry v. State,808 So.2d 1249 (Fla. 2002).

(11) The defendant could not be sentenced as a habitualoffender on revocation of probation where he was notoriginally sentenced as a habitual offender. Mack v. State,823 So.2d 746 (Fla. 2002).

(12) The court relies on Waters. “When a trial court imposes a newsplit sentence following a violation of probation, the lawrequires that the court ‘ ‘give credit for any time previouslyserved on probation if the new period of probationtogether with other sanctions (including jail and prisoncredit) and the time previously served on probation totalmore than the statutory maximum for the underlyingoffense.’ ’ ’’ Edwards v. State, 59 So.3d 1177 (Fla. 5th DCA2011).

2. Modify, extend, or add probation or community control.

a. “Notwithstanding s. 775.082, when a period of probation orcommunity control has been tolled, upon revocation ormodification of the probation or community control, the courtmay impose a sanction with a term that when combined with theamount of supervision served and tolled, exceeds the termpermissible pursuant to s. 775.082 for a term up to the amount ofthe tolled period supervision.” 948.06(2)(f), Fla. Stat.

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b. It is not error for the court to extend probation by agreementafter notice and a probation violation hearing where part of theagreement is that the violation will be dismissed. Joseph v. State,541 So.2d 796 (Fla. 3d DCA 1989).

c. It was error to impose probation on misdemeanors where theoriginal probationary term had expired. Bolton v. State, 619So.2d 412 (Fla. 2d DCA 1993).

3. Continue probation and reimpose conditions or impose new conditionsto original term or to extend term.

a. On a violation of probation the court could reimpose unpaidrestitution sums when the statutory maximum term of incarcerationwas imposed even though no new term of probation was ordered.Williams v. State, 565 So.2d 849 (Fla. 1st DCA 1990).

b. When the court imposed a condition which was stated in the writtenorder on a violation of probation as, “Same Terms & Conditions”it was necessary to state that requirement on the record. Carterv. State, 606 So.2d 680 (Fla. 2d DCA 1992).

c. Even though the same special conditions had been imposed onseveral conditions so that the defendant probably had actualknowledge of them, the trial judge was still required by dueprocess to announce the special conditions on the record. “By‘pronouncement in open court,’ we do not intend to compel the trialcourt to read verbatim to each defendant every special conditioncontained in the defendant's order of probation. Instead, it is sufficientfor the trial court to inform the defendant in open court of thesubstance of each special condition in a manner sufficient to givethe defendant an opportunity to object at that time to anycondition which the defendant believes is inappropriate. Whenspecial conditions of probation are imposed for the first time, theseconditions can be orally explained using language which is differentfrom the language in the order of probation. So long as the oralpronouncement is sufficient to place the defendant on notice of thegeneral substance of each special condition and gives the defendantthe opportunity to object, the minimum requirements of due processare satisfied.” On a violation of probation it is sufficient toannounce that the conditions originally imposed are reimposed.The defendant then has the opportunity to object if he or she feelsthat this requirement is too vague. Olvey v. State, 609 So.2d 640

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(Fla. 2d DCA 1992).

d. Where the court reimposed special conditions of probation it wasnecessary to announce them on the record. Duchesne v. State, 616So.2d 172 (Fla. 2d DCA 1993).

e. It was improper on a finding of violation to order that the amountof restitution the defendant was originally ordered to pay pur-suant to a plea bargain be increased where there was no evidenceor testimony presented supporting the additional sum. Petrillo v.State, 554 So.2d 1227 (Fla. 2d DCA 1990).

f. On a violation the trial judge revoked the defendant's probation andagain placed him on probation. The trial court reimposed all of theoriginal conditions of probation, except the judge also imposed thecondition that the defendant serve an additional 11 months and 15days in the county jail. The defendant was originally ordered to serveone year in jail as a condition of probation. On appeal, the Courtfound that it was invalid because the trial court merely modifiedthe terms of the defendant's original probation and in effect theadditional jail was a special condition of probation and the resultwas that the total jail exceeded 364 days in the county jail. Thiswas an invalid sentence under Villary. McDougal v. State, 604So.2d 896 (Fla. 1st DCA 1992).

4. Rule 3.790 & §948.06 contain provisions relating to sentencing.

5. License suspension.

a. Where the defendant pled no contest to grand theft which involvedthe use of an auto and was placed on probation and then violated hisprobation and pled no contest, it was proper for the judge to send therecord of the conviction and the factual basis to DHSMV, whichmust revoke his driving privilege pursuant to Fla. Stat.§322.26(3)(1987). Vachris v. State, 553 So.2d 375 (Fla. 2d DCA1989); Spera v. State, 556 So.2d 487 (Fla. 2d DCA 1990).

b. The trial court cannot suspend the defendant’s license uponrevocation of probation on a possession of cocaine chargepursuant to §322.055(1), but it can direct the DHSMV to suspendit for up to two years. Neil v. State, 556 So.2d 486 (Fla. 2d DCA1990).

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c. Pursuant to § 322.055(1) where a defendant is convicted ofpossession or sale of a controlled substance the sentencing court maydirect DHS&MV to suspend the person's license for a period of twoyears. “Such revocation of the driving privilege may be imposedas a condition of probation.” Martin v. State, 618 So.2d 737 (Fla.1st DCA 1993).

6. Credit for time served.

a. These are the rules as to credit: after a violation: (1) if thedefendant is sentenced to straight incarceration upon resentencing,then credit must be given for all time served in prison or jail; (2) if thedefendant receives straight probation, then credit must be given forall time served on probation, community control, or in prison or jail;(3) if the defendant receives a combination of incarceration andprobation, then credit must be given for all time served on probation,community control or in prison or jail; (4) if the defendant issentenced to straight community control, then credit must be givenfor all time served on community control and prior prison and jail.Gardner v. State, 656 So.2d 933 (Fla. 1st DCA 1995).

b. “On October 27, 1993, the appellant was sentenced to three years’imprisonment to be followed by two years’ probation. On July 19,2005, after a violation of probation, the appellant was sentenced toeighteen months’ imprisonment. The appellant was not awardedcredit for the time he spent in prison prior to his resentencingafter his violation of probation. Upon a violation of probationand resentencing, an accused is entitled to prison credit for alltime served on the charge prior to resentencing. (Citationsomitted) We accordingly reverse and remand for the trial court toresentence the appellant and award prison credit for his time servedprior to his violation of probation.” Nix v. State, 941 So.2d 568 (Fla.1st DCA 2006). See also Lowndes v. State, 98 So.3d 1271 (Fla. 1stDCA 2012).

c. Any sentence that violates these rules on credit is illegal and thecourt cannot hold the defendant to any agreement to such asentence. The defendant cannot acquiesce in an illegal sentence byentry of a plea. Wilson v. State, 698 So.2d 1380 (Fla. 4th DCA1997).

d. The defendant may waive credit for jail as part of a plea bargain.Robinson v. State, 827 So.2d 345 (Fla.4th DCA 2002). But the

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waiver must be clearly shown on the record. Reddix v. State, 15So.3d 614 (Fla. 3d DCA 2009); Holmes v. State, 11 So.3d 444 (Fla.3d DCA 2009).

e. Where the plea colloquy indicated that the defendant would be givencredit for all time served, that agreement was enforceable. Less timecan be awarded if the defendant agrees to credit from a specificdate. Wilson v. State, 13 So.3d 522 (Fla. 3d DCA 2009).

f. “ Section 921.161(1), Florida Statutes (2010), provides that ‘the courtimposing a sentence shall allow a defendant credit for all of the timeshe or he spent in the county jail before sentence.’ In the context ofa violation of probation sentence, a defendant is entitled to alltime spent in jail prior to being sentenced and after beingsentenced on the underlying charge. (citation omitted). Adefendant is also entitled to credit for time served in jail for thecurrent violation of probation and prior violations of the sameprobation.... The State also cited Daniels v. State, which holds thata defendant is entitled to credit for time spent in jail on multiplecharges if the sentences run concurrently. 491 So.2d 543, 545(Fla.1986). Although the record reflects that Davis received aconsecutive sentence for the new offense, he was sentenced first forthe violation of probation. ‘When consecutive sentences areimposed, a defendant must be given jail credit only on the first ofthe consecutive sentences.’ Ransone v. State, 20 So.3d 445, 448–49(Fla. 4th DCA 2009). This is so even if the defendant is held onother charges during some or all of that time. Davis v. State, 473So.2d 46, 46 (Fla. 4th DCA 1985).” Davis v. State, 88 So.3d 1055(Fla. 4th DCA 2012).

g. Place where time was served.

(1) The defendant killed his wife and then shot himself. As aresult he was hospitalized under police guard. After he wasdischarged from the hospital he was charged with andconvicted of the murder of his wife. He maintained that hewas entitled to credit for the time he spent in the hospitalbased on the decision in Tal-Mason v. State, 515 So.2d 738(1987). In that case, the court held that a defendant wasentitled to credit for any time served in an institution thatis the functional equivalent of the county jail. The Courtfound that the defendant there was entitled to credit for timespent in a mental institution while awaiting trial. On appeal,

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the Court distinguished the Tal-Mason decision by pointingout that the critical feature of that case was that “‘thecriminal charges remain pending against the detainee andthe detention will culminate, if at all, in a trial orsentencing.’” In this case, the defendant was nothospitalized by the state awaiting trial or sentencing, butrather he was hospitalized as a result of the injuriesinflicted at his own hand, therefore, he was not entitled tocredit for the time he was in the hospital. Morgan v. State,557 So.2d 605 (Fla. 1st DCA 1990).

(2) A defendant is entitled to credit “for time served in anyinstitution serving as the functional equivalent of a jail,where the detention ‘constitute[s] a coercive deprivationof liberty and implicate[s] significant constitutionalrights.’” The statute does not permit credit for time served indrug rehab centers, halfway houses, and probation andrestitution centers. In this case, the defendant was placed onprobation with a special condition that he attend behaviormodification classes and refrain from alcohol use. He had ajob and was free to come and go. There was no “coercivedeprivation of liberty.” He was not entitled to credit. Smithv. State, 619 So.2d 994 (Fla. 3d DCA 1993).

(3) The defendant was not entitled to credit against a jailsentence for time spent in a pretrial house arrest programwhereby he was restricted to his residence for specifiedtimes and required to wear a monitor. Such restrictions donot involve the restraint on liberty that is present with jail orconfinement in a forensic mental ward, which was found to bethe “functional equivalent” of jail and require credit in Tal-Mason v. State, 515 So.2d 738 (Fla. 1987). The Court notedthat in Fraser v. State, 602 So.2d 1299 (Fla. 1992), the Courtallowed credit against jail for community control because thedefendant was successfully serving his term of communitycontrol when it was discovered that there had been apaperwork error and that he should have been sentenced tojail. That ruling was confined to the peculiar circumstances ofthat case. Fernandez v. State, 627 So.2d 1 (Fla. 3d DCA1993). See also Licata v. State, 788 So.2d 1063 (Fla. 4thDCA 2001).

(4) Time in secure detention as a juvenile before being certified

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and transferred to the county jail is the “functionalequivalent” of jail and the defendant must be given credit.Harvey v. State, 622 So.2d 170 (Fla. 2d DCA 1993).

(5) The defendant was in the county jail awaiting trial. Herequested transfer to a private psychiatric hospital fortreatment and said that he was prepared to pay for thehospital. Restrictions were imposed, some of which weresuggested by the defendant, but the action was taken over thestate’s objection. The defendant argued that he should havebeen given credit for the time spent in the private hospital.The trial judge refused. On appeal the Court affirmed basedon the decision in Tal-Mason v. State, 515 So.2d 738 (Fla.1987). The Court said that there the Court relied on twofactors: (1) the extent to which the confinementconstituted “‘a complete deprivation of liberty’ in whichthe state ‘assumed total, if constructive custody ... asthough he were in the county jail;’” (2) “the confinementmust be coercive or involuntary.” In this case, the transferwas clearly not coercive or involuntary since thedefendant went to great lengths to secure the transfer overthe state’s objection. Roberts v. State, 622 So.2d 628 (Fla.1st DCA 1993), rev. denied, 634 So.2d 626 (Fla. 1994).

(6) The defendant asked to be transferred to a lockdownpsychiatric hospital. The court ordered it. She wastransported by police and held in that facility without bond.From time to time she was transported to the court for pretrialproceedings. The trial judge refused to give her credit fortime served in that facility. On appeal, the court reversed. Thecourt concluded that the fact that the defendant requestedplacement in the facility was irrelevant. “The character of thefacility (i.e. the ‘completeness’ of confinement) is morecentral to our analysis.” The court concluded that herconfinement was complete. Maniccia v. State, 931 So.2d1027 (Fla. 4th DCA 2006). See also Clark v. State, 28 So.3d135 (Fla. 2d DCA 2010).

(7) “We must decide whether a court may grant jail-time creditfor time spent in a drug rehabilitation facility as a conditionof community control.... we hold that a defendant whoviolates the conditions of his community control cannotreceive credit against a subsequent prison sentence for the

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time he spent in a drug rehabilitation facility.... The statutethat governs jail-time credit is section 921.161(1), FloridaStatutes (2003). It provides: ‘A sentence of imprisonmentshall not begin to run before the date it is imposed, but thecourt imposing a sentence shall allow a defendant credit forall of the time she or he spent in the county jail beforesentence. The credit must be for a specified period of timeand shall be provided for in the sentence.’ Read literally, thisstatute applies only to time a prisoner spends in the county jailawaiting a sentence. But we have interpreted the statute torequire credit for time served ‘in any institution serving asthe functional equivalent of a county jail.’ Tal-Mason v.State, 515 So.2d 738, 740 (Fla.1987).... [W]e have narrowlyinterpreted what we called ‘the functional equivalent of acounty jail.’ Time spent in the control release program, Gayv. Singletary, 700 So.2d 1220, 1222 (Fla.1997), or in a drugrehabilitation facility as a condition of probation, Penningtonv. State, 398 So.2d 815, 816 (Fla.1981), is not the functionalequivalent of time spent in a county jail....We now confrontthe slightly different issue of whether a defendant may begiven jail-time credit when the time spent in a drugrehabilitation facility was a condition of communitycontrol instead of probation.... Given that communitycontrol is restrictive by definition, we decline to concludethat treatment in a drug rehabilitation facility is so muchmore restrictive as to be tantamount to confinement in thecounty jail. We also decline to read the jail-time creditstatute as overriding the plain language of section948.06(3).... We hold today, as we did in Young, that adefendant who violates the conditions of communitycontrol cannot be given credit against a subsequent termof incarceration for the time spent in community control.See § 948.06(3), Fla. Stat. (2003). This prohibition applieswhen a defendant spends time in a drug rehabilitation facilityas a condition of his community control.” State v. Cregan,908 So.2d 387 (Fla. 2005). See also Carrier v. State, 925So.2d 386 (Fla. 4th DCA 2006)(time spent in a drug rehabprogram as a condition of probation or community control iscontractual, “not a coercive deprivation of liberty”.); Comerv State, 909 So.2d 460 (Fla. 4th DCA 2005).

(8) The defendant was not entitled to credit for time spent in adrug treatment center. Taylor v. State, 726 So.2d 348 (Fla.

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3d DCA 1999). See also Toney v. State, 817 So.2d 924 (Fla.2d DCA 2002); Hill v. State, 813 So.2d 274 (Fla. 5th DCA2002); Aviles v. State, 794 So.2d 734 (Fla. 5th DCA 2001);Williams v. State, 780 So.2d 244 (Fla. 2d DCA 2001).

h. Credit for jail time prior to sentencing or while awaiting anappeal.

(1) One is entitled to credit for time served while awaitingsentencing against a jail term imposed as a condition ofprobation. Willis v. State, 543 So.2d 343 (Fla. 1st DCA1989); Springer v. State, 616 So.2d 1105 (Fla. 5th DCA1993). See also Corse v. State, 833 So.2d 317 (Fla. 2d DCA2003)(defendant entitled to credit since arrest where 364 dayswas imposed as an addition condition of community controlupon revocation).

(2) Where a defendant is sentenced to the county jail as acondition of probation he must be given credit for all the timespent in the county jail prior to the sentencing. Griner v.State, 523 So.2d 789 (Fla. 5th DCA 1988); Carroll v. State,523 So.2d 787 (Fla. 5th DCA 1988).

(3) The defendant served time awaiting the results of an appealand after the appeal he was placed on probation. The term ofprobation plus the time served cannot exceed the statutorymaximum term of incarceration. The defendant is entitledto credit against the term of probation for the time served.McCray v. State, 517 So.2d 770 (Fla. 2d DCA 1988).

(4) A defendant who is sentenced on a violation of probationis entitled to credit for time served after his arrest on thecharge originally and before his release on probation.Richards v. State, 521 So.2d 292 (Fla. 1988).

(5) On sentencing for a violation of probation the defendant mustreceive credit for the time served before he was placed onprobation and while awaiting judgment and sentence onthe violation. Kerklin v. State, 548 So.2d 689 (Fla. 2d DCA1989); See also Dixon v. State, 546 So.2d 1194 (Fla. 3d DCA1989).

(6) Where the defendant was on probation and was arrested

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for a new charge, which also constituted a violation ofprobation and was sentenced to concurrent time on thenew charge and the violation of probation, he was entitledto receive credit on both sentences for the time spent inthe county jail awaiting disposition. This ruling was basedon the conclusion that the county jail time "was attributableboth to the new felony arrest and to the fact his arrestrepresented a violation of probation" unless the files andrecords demonstrated otherwise. Davis v. State, 543 So.2d437 (Fla. 2d DCA 1989).

(7) Upon revocation of probation the defendant must be givencredit for time served in the county jail while awaiting theimposition of his original probationary sentence. The trialjudge cannot depart from this requirement on the grounds thathe did not originally impose any jail time because of the timethat the defendant had served while awaiting sentencing.Walker v. State, 543 So.2d 343 (Fla. 1st DCA 1989).

(8) The defendant can waive the right to credit for timeserved while awaiting sentencing on a violation of probation,but a free and voluntary waiver must be specificallyestablished by the record. Silverstein v. State, 654 So.2d1040 (Fla. 4th DCA 1995).

(9) The defendant waived the right to receive credit for timeserved at the time of the original sentence as part of a pleaagreement. At a subsequent violation of probation, thedefendant argued that the waiver did not apply. On appeal, thecourt disagreed. The waiver applied throughout theproceeding unless the defendant specifically exempted thesubsequent proceeding from the waiver. Bradley v. State,727 So.2d 1001 (Fla. 4th DCA 1999).

(10) A sentence which does not properly grant credit for timeserved is illegal and may be corrected at any time. Whena defendant escapes, his or her sentence is tolled. It restartswhen the defendant is captured. Time spent in the county jailawaiting trial on the escape must be credited against theoriginal sentence. These principles only apply where thedefendant is incarcerated in a Florida jail. If the defendant isheld in another state solely on “a Florida charge, detainer,or warrant” credit for that time is within the discretion of

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the trial judge. When a defendant is incarcerated inanother state on charges unrelated to any Florida chargethat defendant is not entitled to credit for time served onthe Florida charge. In this case, the defendant was notentitled to credit for time he spent in Indiana on a burglarycharge. Hopping v. State, 650 So.2d 1087 (Fla. 3d DCA1995). See also Dewitt v. State, 818 So.2d 692 (Fla. 5th DCA2002).

(11) The court receded from its earlier decision in Mazza thata defendant incarcerated in another state is entitled tocredit on the sentence on a violation of probation when adetainer is placed. The court concluded that such credit isdiscretionary. “When deciding whether to award credit, atrial court should consider whether the defendant was beingheld ‘solely because of the Florida offense for which he or sheis being sentenced.’ DeGeso, 771 So.2d at 1265 (quotingKronz, 462 So.2d at 451). This court has stated that theexercise of this discretion ‘is not unbridled but is subject tothe test of reasonableness,’ and when a trial court deniescredit, the trial court must attach documentation or state thereasons for denying the credit. Heuton v. State, 790 So.2d1204, 1205 (Fla. 2d DCA 2001).” McRae v. State, 820 So.2d1048 (Fla. 2d DCA 2002).

(12) The conflict between the districts has been resolved by theSupreme Court. “An arrest warrant is a formal, definitive,and mandatory document, whereas the detainer is thetransmission of information and a request to hold a person ornotify the requesting authority of the prisoner’s imminentrelease. Therefore, when a defendant is serving time in jail onone charge and a separate jurisdiction issues a detainer foranother charge, there is no formal, definitive mandate to holdthe defendant in relation to the detainer. Generally, undersuch circumstances, a prisoner is not in custody pursuantto the detainer. Only if the prisoner is subject to releasebut is being held because a detainer has been lodged canit be said that the prisoner is in custody pursuant to thedetainer.... We agree with the Fourth District in this case thatthe filing of a detainer or a hold does not have the same effectas executing or transmitting an arrest warrant. When acounty issues a detainer or hold to another county, it ismerely requesting either to hold the defendant for the

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second county or to notify the second county when releaseis imminent so that the second county can act. In thatcase, no jail credit need be awarded by the second countyfor time served in the first county for the period duringwhich the detainer or hold is lodged.” Gethers v. State,838 So.2d 504 (Fla. 2003). Hunter v. State, 842 So.2d 243(Fla. 2d DCA 2003). See also Robertson v. State, 81 So.3d629 (Fla. 5th DCA 2012); Cooper v. State, 967 So.2d 928(Fla. 1st DCA 2007); Smith v. State, 932 So.2d 594 (Fla. 5thDCA 2006)(“Although a defendant is not entitled toreceive jail credit when a detainer is lodged against him,a defendant who is actually arrested on an outstandingwarrant is entitled to receive jail credit.”); Trout v. State,927 So.2d 1052 (Fla. 4th DCA 2006)(arrest took place whenofficer told defendant he was under arrest and that a warranthad been issued; and officer need not have warrant in hispossession; therefore, defendant was entitled to credit fromthat moment).

(13) Where the defendant’s probation is revoked on more than oneoffense and a concurrent jail sentence is imposed on eachoffense, he or she is not entitled to receive credit against all ofthe offenses for the longest period of time served on one ofthe offenses. The offender is only entitled to receive creditagainst each offense for the actual time served on thatoffense. Keene v. State, 500 So.2d 592 (Fla. 2d DCA 1986).See also Gonzalez v. State, 17 So.3d 1277 (Fla. 2d DCA2009)(Defendant was entitled to credit for time served on fourcharges even though arresting officer noted arrest on only oneof the charges where other documents clearly indicated thearrest was on all four charges; in Keene defendant wasarrested at different times).

(14) The defendant was acquitted on the new charge, but served280 days in the county jail while awaiting trial on the newcharge. He was entitled to credit for that time against hissentence on the violation of probation based on the newcharge. Louis v. State, 797 So.2d 1281 (Fla. 4th DCA 2001).

(15) On sentencing on a violation of probation, the defendant isnot entitled to credit for time spent in jail on an unrelatedcharge. Archambault v. State, 789 So.2d 463 (Fla. 5th DCA2001).

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(16) The court granted the defendant’s petition for writ of habeascorpus. The defendant was found guilty of a lesser includedfirst degree misdemeanor. He was violated and the courtissued a warrant. The defendant argued that he shouldreceived credit for 244 days he had already spent in jail on theoriginal charge, and that time combined with the probationserved, exceeded one year. Accordingly, the court had nofurther jurisdiction. “We agree with the petitioner that thetrial court was required to credit his time served in jailawaiting trial on the aggravated stalking charge againstthe probation time that petitioner was ultimately orderedto serve so that the combination of both would not exceedthe one-year statutory maximum for the offense.... Wenote that a defendant is not always entitled to credit fortime served awaiting trial when he or she is subsequentlyordered to probation as a sanction for the offense. Thetrial court is only required to credit the jail time againstthe term of probation if the time already served in jailcombined with the ordered probationary period wouldexceed the statutory maximum. See Hernandez v. State, 889So.2d 913 (Fla. 2d DCA 2004). For example, if a defendantis sentenced to three months probation for a first degreemisdemeanor and the defendant has spent three months in jailawaiting trial, the trial court need not credit the defendantwith time served in jail against his probation since thecombination of the time spent in jail and the time ordered onprobation would not exceed the one-year statutory maximumfor the offense. Id. .... Thus, the trial court would have hadno jurisdiction to place petitioner in jail awaiting ahearing on a charge of violation of probation sincepetitioner’s period of probation expired prior to theaffidavit of violation and the arrest warrant.” Grissingerv. State, 905 So.2d 982 (Fla. 4th DCA 2005).

(17) The trial judge convicted the defendant of a VOP. Waithepreviously served time in jail for four separate violations ofprobation. The trial judge refused to give the defendant creditfor time served on the prior violations and only gave credit fortime served on this violation. “Section 921.161(1), FloridaStatutes, provides, in relevant part: ‘[T]he court imposing asentence shall allow a defendant credit for all of the time sheor he spent in the county jail before sentence.’” This is

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mandatory unless waived. “The credit for time servedincludes any portion of jail time served for priorviolations of probation.” Waithe v. State, 941 So.2d 534(Fla. 4th DCA 2006).

(18) “The narrow issue in this case is whether the State, bydelaying execution of an arrest warrant on a detainee in thelocal jail, can avoid providing jail credit to the detainee on asentence imposed for a violation of probation based on a newoffense: (1) when the detainee is at all relevant times in jailpending disposition of that same new offense, and (2) whenthe sentence on the new offense and the offense on violationof probation are imposed to run concurrently. At least in thisnarrow context, the detainee is entitled to receive jailcredit from the date of the issuance of the affidavit ofviolation and related warrant if the warrant is not servedwithin a reasonable time.” Martinez v. State, 965 So.2d1244 (Fla. 2d DCA 2007).

(19) Defendant was in custody on other charges. A warrant wasissued for a vop in another county. A teletype announced thatthe defendant was not to be arrested on that information andanother teletype asked that a hold be placed on the defendant.Defendant claimed he was entitled to additional credit fromthe time the warrant was issued. The court disagreed. “Adefendant is not entitled to jail credit for time served untilthe warrant is served. Gethers v. State, 838 So.2d 504, 507-08 (Fla. 2003).... The narrow holding of Martinez does notapply to the present case.... In Martinez, the defendant wasconvicted twice in Lee County and the evidence more clearlydemonstrated that ‘local authorities took all steps toimmediately toll Mr. Martinez’s term of probation but did nottake the simple step necessary to commence his jail term.’ Id.Here, not only is the record inconclusive as to bothwhether the warrant was executed in 2001, as Alphonsoclaims it was, and whether law enforcement officials actedin collusion to prevent execution of said warrant, butAlphonso was sentenced and served time in two differentcounties. The decision of the trial court thus is affirmed, andlaw enforcement officials are admonished against seekinga warrant and subsequently asking a holding county todelay its execution.” Alphonso v. State, 20 So.3d 959 (Fla.4th DCA 2009).

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i. Credit for time served on original sentence against time imposedfor a violation.

(1) Original prison term on one offense and probation onanother.

(a) As to an offender sentenced under the CriminalPunishment Code (§§921.002-921-.0027), thedecisions set forth below applying Tripp do notapply. That decision required that where an offenderwas sentenced to prison on an offense and then to aconsecutive term on another, the offender must begiven credit for time served on the first offense uponrevocation on the second. The Florida Supreme Courthas ruled that offenders are not entitled to such creditunder the Criminal Punishment Code. “[D]efendantswho violate a consecutive term of probation arenot entitled to credit for prison time served on aseparate offense.” Moore v. State, 882 So.2d 977(Fla. 2004).

(b) On a felony charge, “if a trial court imposes a termof probation on one offense consecutive to asentence of incarceration on another offense, creditfor time served on the first offense must beawarded on the sentence imposed after revocationof probation on the second offense.” This decisionis based on the sentencing guidelines and applies onlyto felonies. Tripp v. State, 622 So.2d 941 (Fla.1993). See also Knowles v. State, 995 So.2d 1121(Fla. 4th DCA 2008).

(c) “[W]e clarify our holding in Tripp to emphasizethat a defendant who violates probation onmultiple counts imposed consecutive to a prisonterm is entitled to credit for the time served on theprison term as to the entire sentence imposed onthe probation violation, not against each individualcount on which probation was violated. TheCourt’s holding in Tripp was intended to preventthe circumvention of the guidelines by treatingsentences computed on one scoresheet as an

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interrelated unit. Tripp was never intended toprovide a sentencing boon or windfall todefendants upon violation of probation.” Hodgdonv. State, 789 So.2d 958 (Fla. 2001). See alsoAtkinson v. State, 860 So.2d 982 (Fla. 1st DCA2003); Doty v. State, 851 So.2d 827 (Fla. 1st DCA2003); Welles v. State, 848 So.2d 441 (Fla. 4th DCA2003).

(d) The defendant was sentenced to six yearsincarceration for a burglary and given a consecutiveterm of probation on a resisting arrest charge. He wassubsequently violated on the probation and sentencedto prison on the resisting. Puruant to Tripp v. State,622 So.2d 941 (Fla. 1993), the court ruled that heshould have been given credit for the time served onthe burglary against his prison sentence on theresisting. Where a person is sentenced to serve aconsecutive term of probation on one charge andprison on another charge, when his probation isviolated he must be given credit for the prison timeserved on the first charge. Dock v. State, 671 So.2d297 (Fla. 5th DCA 1996). See also Miller v. State,877 So.2d 915 (Fla. 4th DCA 2004); French v. State,866 So.2d 190 (Fla. 1st DCA 2004).

(e) The decision in Tripp v. State, 622 So.2d 941 (Fla.1993), holds that where a person is sentenced to servea consecutive term of probation on one charge andprison on another charge, when his probation isviolated he must be given credit for the prison timeserved on the first charge. This rule is necessarybecause without it the defendant’s sentence wouldexceed the guidelines without written reasons fordeparture. Gardner v. State, 656 So.2d 933 (Fla.1st DCA 1995).

(f) If the trial court gives the defendant a term ofprobation on one charge to run consecutive to a termof imprisonment on another charge, the court mustgive credit for the term, of imprisonment againstany jail sentence on a subsequent revocation of theprobation. Brown v. State, 658 So.2d 1187 (Fla. 1st

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DCA 1995).

(g) Where the defendant was sentenced to probation onone offense to run consecutively to a prison term onanother offense, he was entitled to credit to the timeserved on the first offense when he was sentenced toprison for revocation of probation on the secondoffense. Tripp v. State, 622 So.2d 941 (Fla. 1993).Since the offense occurred in 1988 he was entitled tocredit for actual jail time and gain time. Byers v.State, 687 So.2d 294 (Fla. 2d DCA 1997).

(h) The rule in Tripp v. State, 622 So.2d 941 (Fla. 1993),holding that when prison and probation terms areimposed for different crimes at the same sentencingproceeding, a subsequent prison sentence uponrevocation of that probation must reflect credit for thetime initially served on the other offense, does notapply to a habitual offender sentence thatdefendant was serving. Thus, he was not entitled tocredit for the time he served pursuant to the guidelinesentence. “The danger sought to be avoided byTripp - the imposition of prison time in excess ofthat mandated by the guidelines in circumstanceswhere probation on one or more counts followsprison time on one or more others - simply doesnot inhere in the context of a habitual offendersentence for which the guidelines do not apply.”The court recedes from Kilpatrick v. State, 622 So.2d1032 (Fla. 2d DCA 1993). Duncan v. State, 686So.2d 701 (Fla. 2d DCA 1996), approved in State v.Matthews, 891 So.2d 479 (Fla. 2004).

(i) If the defendant is sentenced to a term of probation onone offense consecutive to a prison term on anotheroffense, the defendant must be given credit for thetime served on the first offense, if the defendant issubsequently sentenced to prison on a revocation ofprobation on the second offense. Singer v. State, 679So.2d 1274 (Fla. 2d DCA 1996). See also Atkinsonv. State, 860 So.2d 982 (Fla. 1st DCA 2003).

(j) The defendant was placed on probation on one felony

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and sentenced to prison on another felony at the sametime. The probation ran consecutive to the prison. Onrevocation of the probation, the defendant was notentitled to credit for county jail time pursuant toKeene v. State, 500 So.2d 592 (Fla. 2d DCA 1986),but he was entitled to credit for prison time servedon the one offense against prison time imposed onthe other offense on the revocation pursuant toTripp v. State, 622 So.2d 941 (Fla. 1993). Hopps v.State, 725 So.2d 1204 (Fla. 2d DCA 1999).

(k) The court says that Tripp stands for the propositionthat “If a trial court imposes a term of probationon one offense consecutive to a sentence ofincarceration on another offense .... jail creditfrom the first offense [cannot] be denied on asentence imposed after a revocation of probationon the second offense.” Youmans v. State, 724So.2d 1274 (Fla. 5th DCA 1999).

(2) Time served originally as a condition of probation.

(a) Defendant is entitled to credit for time served as acondition of probation against a term ofimprisonment imposed for a violation ofprobation. Sylvester v. State, 529 So.2d 809 (Fla.5th DCA 1988).

(b) The defendant was entitled to credit for time servedas a condition of probation (a Villary sentence)against any time imposed for revocation of probationor community control. Gonzalez v. State, 678 So.2d433 (Fla. 3d DCA 1996).

(3) Credit for time served on unrelated charge.

(a) Where the defendant was in jail in New York awaitingextradition on the Florida violation of probation, heshould have received credit for the time spent therebecause he was told as part of a plea arrangementon the violation of probation that he would receivecredit for time served without limitation and nodistinction was made as to the New York time.

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Picariello v. State, 728 So.2d 1185 (Fla. 3d DCA1999).

j. Credit for probation, community control, and jail served prior torevocation against probation and community control.

(1) “When the court imposes a subsequent term of supervisionfollowing a revocation of probation or community control, itshall not provide credit for time served while on probationor community control toward any subsequent term ofprobation or community control. However, the court maynot impose a subsequent term of probation or communitycontrol which, when combined with any amount of timeserved on preceding terms of probation or communitycontrol for offenses before the court for sentencing, wouldexceed the maximum penalty allowable as provided by s.775.082. No part of the time that the defendant is onprobation or in community control shall be considered asany part of the time that he or she shall be sentenced toserve.” §948.06(3), Fla. Stat.

(2) “[U]pon revocation of probation credit must be given fortime previously served on probation toward any newly-imposed probationary term for the same offense, whennecessary to ensure that the total term of probation doesnot exceed the statutory maximum for that offense.” TheCourt agreed with the observation in Ogden v. State, 605So.2d 155, 158 (Fla. 5th DCA 1992), that if it were otherwiseprobation could be “extended ad infinitum” and that was notthe intent of the Legislature when it created statutorymaximum sentences. Language from the decision in State v.Holmes, 360 So.2d 380 (Fla. 1978) and § 948.06, that on aviolation of community control or probation the court mayimpose any sentence it could have originally imposed, onlyprohibits credit for time served on probation against aterm of incarceration imposed for a violation ofprobation. State v. Summers, 642 So.2d 742 (Fla. 1994).See also Billias v. State, 924 So.2d 917 (Fla. 5th DCA 2006).

(3) “[T]he time that the probationer has already served onprobation for the same offense must be credited towardany new term of probation so that the total term ofprobation does not exceed the statutory maximum. See

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State v. Summers, 642 So.2d 742 (Fla.1994).” Grissinger v.State, 905 So.2d 982 (Fla. 4th DCA 2005).

(4) The holding of Summers has been extended to includecommunity control. State v. Roundtree, 644 So.2d 1358(Fla. 1994).

(5) The statute provides that when the court imposes an

additional term of community control or probation, thedefendant shall not be given credit for time previouslyserved on community control or probation on the samecharge. § 948.06, Fla. Stat. (1997). Further, it providesthat the additional term of community control orprobation, when combined with any previously servedperiod of community control or probation on the samecharge, cannot exceed the maximum term ofimprisonment authorized by statute. Id. The SupremeCourt has determined that the Legislature intended theserestrictions to apply on the extension of community controland probation. Young v. State, 697 So.2d 75 (Fla. 1997).

(6) The statutes and the cases make it clear that the court mustgive credit for community control and probation under limitedcircumstances. The court must give credit for timepreviously served on probation or community control onlyif the total of all probation imposed will exceed themaximum prison term. Francois v. State, 695 So.2d 695(Fla. 1997); Wilson v. State, 698 So.2d 1380 (Fla. 4th DCA1997).

(7) The court must give credit for previous jail or prison time,along with previous community control and probation,against additional community control or probation, if it isnecessary to avoid having the combination exceed thestatutory maximum jail or prison term. Young v. State,697 So.2d 75 (Fla. 1997); Martin v. State, 699 So.2d 327(Fla. 2d DCA 1997); Jolly v. State, 699 So.2d 303 (Fla. 2dDCA 1997); Sinks v. State, 691 So.2d 1202 (Fla. 4th DCA1997).

(8) The defendant was not entitled to credit against anadditional term of probation for time spent in jail onanother charge, awaiting resolution of the violation of

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probation. His incarceration tolled the running ofprobation because he was not available for probationarysupervision. This case dealt with an individual who wasincarcerated in another jurisdiction. Horton v. State, 700So.2d 376 (Fla. 1997).

(9) The probationary period is not tolled by the commissionof the violation or the filing of the affidavit; therefore, thedefendant would be entitled to have the period between thefiling of the affidavit and the revocation counted indetermining whether any additional term of probation mightcause the total probation served to exceed the statutorymaximum period of incarceration. Horton v. State, 700So.2d 376 (Fla. 1997); Francois v. State, 695 So.2d 695 (Fla.1997); Wilson v. State, 698 So.2d 1380 (Fla. 4th DCA 1997.[THIS HAS BEEN CHANGED BY STATUTE].

(10) §948.06(1), Fla. Stat. was amended effective July 1, 2001and again in 2007 to read: “Upon the filing of an affidavitalleging a violation of probation or community controland following issuance of a warrant under s. 901.02, awarrantless arrest under this section, or a notice to appearunder this section the probationary period is tolled untilthe court enters a ruling on the violation. Notwithstandingthe tolling of probation as provided in this subsection, thecourt shall retain jurisdiction over the offender for anyviolation of the conditions of probation or community controlthat is alleged to have occurred during the tolling period. Theprobation officer is permitted to continue to supervise anyoffender who remains available to the officer forsupervision until the supervision expires pursuant to theorder of probation or community control or until thecourt revokes or terminates the probation or communitycontrol, whichever comes first. ... Notwithstanding s.775.082, when a period of probation or community controlhas been tolled, upon revocation or modification of theprobation or community control, the court may impose asanction with a term that when combined with the amount ofsupervision served and tolled, exceeds the term permissiblepursuant to s. 775.082 for a term up to the amount of thetolled period supervision. If the court dismisses an affidavitalleging a violation of probation or community control,the offender’s probation or community control shall

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continue as previously imposed, and the offender shallreceive credit for all tolled time against his or her term ofprobation or community control.”

(11) One is not entitled to credit against community control fortime served on an unrelated charge. Gildow v. State, 700So.2d 769 (Fla. 2d DCA 1997). See also Jones v. State, 750So.2d 709 (Fla. 2d DCA 2000).

(12) The defendant was not entitled to credit against hiscommunity control time for time served in jail.“[C]ommunity control is not the equivalent ofincarceration.” Lopez v. State, 722 So.2d 936 (Fla. 4thDCA 1998).

(13) The defendant was placed on fifteen years probation. Hisprobation was revoked and he was sentenced to fifteen yearsin prison. The defendant argued that the sentence was illegalbecause when his prison term was added to the time that heserved on probation, it exceeded the statutory maximum termof prison. The trial court rejected this position., The courtaffirmed. “Section 948.06(2) provides that no part of the timethe defendant is on probation shall be considered part of thetime that the probationer shall be sentenced to serve....[P]robation is not a sentence.... In his motion Bruggemanrelies on this court’s opinion in Jones v. State, 667 So.2d 940(Fla. 2d DCA 1996), which we now acknowledge incorrectlyapplied the rule set forth in Waters v. State, 662 So.2d 332(Fla. 1995). In Waters the supreme court held that, if the trialcourt includes probation as part of a sentence imposed uponrevocation of probation, the trial court must give credit forany time previously served on probation if the new period ofprobation together with other sanctions, including jail andprison credit, and the time previously served on probationtotal more than the statutory maximum for the underlyingoffense. Thus, Waters applies only in those cases where,after revocation of probation, the defendant is given asplit sentence of incarceration followed by probation.”Bruggeman v. State, 681 So.2d 822 (Fla. 2d DCA 1996).

(14) The defendant was convicted of a third degree felony forwhich the maximum sentence is five years. He served oneyear and 207 days on probation. He violated his probation and

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was sentenced to two years community control followed bytwo years probation. “This illegally extended appellant’sprobation by two hundred and seven days.” Medina v.State, 604 So.2d 30 (Fla. 2d DCA 1992). See also Servis v.State, 588 So.2d 290 (Fla. 2d DCA 1990).

(15) The defendant was sentenced to two years of communitycontrol on a second degree felony. The maximum period ofincarceration was fifteen years. As a result of a violation ofcommunity control the defendant was sentenced to two yearsof probation. The defendant then violated probation and wassentenced to two years of probation. Another violationresulted in a five-year term of incarceration followed by fiveyears of probation. Thus, the total combined sentence wasfive years in prison, nine years of probation and two yearscommunity control. “The holding of Summers has beenextended to include community control. State v.Roundtree, 644 So.2d 1358 (Fla. 1994). Both communitycontrol and probation together cannot exceed thestatutory maximum.” In this case, the combined communitycontrol and probation did not exceed the maximum fifteenyear term; therefore, credit for time served on probation wasnot required. Phillips v. State, 651 So.2d 203 (Fla. 5th DCA1995).

(16) “It is permissible to impose consecutive terms of 2 years ofcommunity control for separate offenses.” Here on arevocation of community control the court imposed twoconsecutive terms of community control; however, the courtheld that the defendant was entitled to credit for timealready served on community control because themaximum term was two years community control on eachcount. If credit were not given the total communitycontrol would exceed the legal limit. Kocher v. State, 651So.2d 1288 (Fla. 3d DCA 1995).

(17) On a third degree felony, the original sentence was awithholding of adjudication and five years probation with acondition that the defendant serve 60 days in the county jail.He violated probation, his probation was revoked and he wassentenced to twenty-four months community control. Thedefendant then violated community control, which wasrevoked. The court then withheld adjudication and placed the

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defendant on additional community control for two years,followed by three years probation with a condition that thedefendant serve 180 days in jail. On appeal, the Court heldthat: (1) the community control on the violation was unlawfulbecause it resulted in total community control of more thantwo years, which is in excess of the statutory limit; (2) thethree year probationary period on the violation wasunlawful because, when combined with the previouslyimposed terms of probation and community controlexceeded it the maximum prison term. The Court stated:“Otherwise, probation and likewise community controlcould be extended by a court ad infinitum beyond thestatutory maximum incarceration each time probation orcommunity control is revoked. We doubt the legislatureintended such a result.” The Court drew a distinctionbetween a revocation of probation and again placing thedefendant on probation versus revocation of probation andsentencing the defendant to incarceration. In the first case, theoriginal term of probation when combined with the secondterm of probation cannot exceed the maximum permissiblejail sentence. In the second case, the defendant can besentenced to the full jail term no matter how long heserved on probation initially, because he is not entitled tocredit against jail for probation. There is authority now thata defendant is entitled to credit against jail for communitycontrol which was illegally imposed through no fault of thedefendant. Ogden v. State, 605 So.2d 155 (Fla. 5th DCA1992).

(18) The defendant was sentenced for a third degree felony to twoand one half years in prison followed by two and one halfyears on probation. The defendant was subsequently violatedand sentenced to five years probation as a condition of whichthe defendant would serve 365 days in the county jail. Onappeal, the Court ruled that the sentence on the violation wasunlawful because it exceeded the maximum statutorysentence. “The maximum sentence that may be imposedupon the appellant cannot exceed five years, the statutorymaximum for a third degree felony, minus the prisonsentence already served.” Knox v. State, 590 So.2d 1017(Fla. 2d DCA 1991).

(19) The defendant had served over two years where the maximum

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penalty was five years imprisonment. “Upon revocation, thetrial court imposed an additional three years ofprobation.” Since the combined time exceeded five years,the extended term of probation was in excess of thestatutory maximum was unlawful. Duchesne v. State, 616So.2d 172 (Fla. 2d DCA 1993).

(20) The maximum sentence was five years incarceration. Thedefendant was originally sentenced to five years probation onJuly 10, 1984. On January 18, 1989 an affidavit of violationwas filed. On July 19, 1989 the court extended his probationfor three years. The defendant again violated his probation onApril 5, 1990. His probation was revoked and he was placedon community control on June 18, 1990. He violated hiscommunity control in 1990 and was sentenced to five years inprison. On appeal the Court found that the sentence wasillegal. Five years from the date of the original sentence wasJuly 10, 1989. The Court said: “A trial court may notextend probation beyond the statutory maximum....Because the trial court initially extended [the defendant's]probation beyond July 10, 1989, the sentence imposedafter that date upon revocation of community controlwould be illegal.... It is true that a trial court may imposeany sentence which it might have imposed originally;...however, the trial court in the instant case did not imposethe five-year sentence until after the probation shouldhave terminated.” Teasley v. State, 610 So.2d 26 (Fla. 2dDCA 1992).

(21) Where the court imposed a five-year term of probation for asecond violation of probation on a third degree felony, thedefendant was entitled to credit “for the probationary timehe served previously when probation was first imposedfor his conviction.” The total period could not exceed fiveyears. Carter v. State, 606 So.2d 680 (Fla. 2d DCA 1992).

(22) On a third degree felony, the defendant was sentenced to threeyears imprisonment followed by two years of probation. Afterhe was released from prison, an affidavit of violation wasfiled against him. He pled guilty and agreed to two yearscommunity control followed by three years probation. Onappeal, the court found that the sentence was illegalbecause the three years of incarceration should have been

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credited against the sentence. The defendant could not bepermitted to agree to this sentence. Reed v. State, 616So.2d 592 (Fla. 4th DCA 1993).

(23) The defendant was originally placed on five years probation.Three years later he was violated and again was placed onfive years probation. That was error based on Kolovrat v.State, 574 So.2d 294 (Fla. 5th DCA 1991). Raulerson v.State, 620 So.2d 265 (Fla. 5th DCA 1993).

(24) The defendant was sentenced to probation on December 15,1989. The maximum sentence was five years, which meansthat it would have ended on December 15, 1994. Theprobation was revoked on May 8, 1992 and the defendant wassentenced to four and half years probation. That sentencewould not have run until November 8, 1996. On appeal, theCourt ruled that this sentence was invalid because it exceededthe statutory maximum by one year and eleven months. “Wehold, as the second district held in Medina v. State, 604So.2d 30 (Fla. 2d DCA 1992), that it is reversible error fora trial court to impose a sentence which exceeds thestatutory maximum, as computed from the initialsentencing date.” Giannandrea v. State, 621 So.2d 582(Fla. 4th DCA 1993).

(25) The defendant was originally sentenced on a third degreefelony to a five-year period of probation. After he had servedthree years and ten months of the probation, it was revoked,and a new five-year term of probation was imposed. TheCourt found that this was invalid. “When probation isrevoked, the trial court can sentence up to the maximumperiod of incarceration permitted by statute. See §948.06(1), Fla. Stat. (1989). However, if probation isreinstated, as it was in this case, the combined periods ofprobation cannot exceed the maximum incarcerativeperiod permitted by statute for the underlying offense.”Moore v. State, 623 So.2d 795 (Fla. 1st DCA 1993).

(26) It was improper to extend probation on a violation beyond themaximum sentence. Such a sentence is illegal and cannotbe agreed to as part of a plea bargain. Conrey v. State,624 So.2d 793 (Fla. 5th DCA 1993).

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(27) The defendant was initially sentenced to two years drug-offender probation on a third degree felony. After completingone year of probation, he violated his probation. The trialjudge revoked his probation and sentenced him to two yearscommunity control followed by three years drug-offenderprobation. Thus, the total sentence would exceed the five-yearstatutory maximum. The Court found that this was invalid.“[W]here a trial court, after having adjudicated adefendant guilty for violating his probation, either extendsor modifies the terms of probation instead of revokingprobation, the statutory maximum must be observed....We find no cogent reason to draw a distinction betweenthe situation where the trial court revokes probation andthe situation where the trial court merely extends ormodifies probation. As the second district has noted, to doso would elevate form over substance. Summer v. State,625 So.2d at 879-80 n.5.” Straughan v. State, 636 So.2d845 (Fla. 5th DCA 1994), approved, 662 So.2d 334 (Fla.1995). See also Schwartz v. State, 774 So.2d 25 (Fla. 2dDCA 2000).

(28) “Upon revocation of probation, the time a probationer hasserved on probation for a given offense must be creditedtoward any new term of probation imposed for thatoffense in order to insure that the total period ofprobation does not exceed the statutory maximum for theoffense.” In this case the defendant had already served fiveyears probation on third degree felony; therefore, anyadditional probation on the violation would be an illegalsentence. Gordon v. State, 649 So.2d 326 (Fla. 5th DCA1995).

(29) The trial court must award credit for the non-incarcerativeportion of a sentence if it is necessary to ensure that the totalnon-incarcerative portion of the sentence after a violationdoes not exceed the statutory maximum prison term. If it isnot necessary to ensure this result, then credit need not begiven. For example, if a defendant was sentenced to two yearsprobation on a five-year felony and served one year onprobation before being violated, the trial judge could imposethree years probation in addition to the original twoyears. No credit would have to be given for the one yearserved. Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995).

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(30) “[T]he rule established in Roundtree is that when aprobationary term is imposed upon a revocation of eitherprobation or community control that all time previouslyserved on either probation or community control must becredited.” Gardner v. State, 656 So.2d 933 (Fla. 1st DCA1995).

(31) The defendant was convicted of a third degree felony. Thus,the maximum sentence was five years incarceration. “Wherethe defendant originally receives a split sentence of prisontime and probation, and then is sentenced to communitycontrol following a revocation of probation, a court musttake into account all time previously served in prison andon probation, so that the total term of probation,community control and jail time imposed does not exceedthe statutory maximum.” Gardner v. State, 670 So.2d1185 (Fla. 5th DCA 1996).

(32) “We conclude that the trial court properly vacated theMay 1993 sentence because the total sanction of jail time,community control and probation, in addition to the timeserved on probation exceeded the statutory five-yearmaximum sentence.... By failing to credit appellant withtime served on probation from December 1992 throughMay 1993, the trial court imposed an illegal sentence.”The defendant did not acquiesce in the imposition of theillegal sentence by entering a plea of guilty. "[A] defendantmay not be violated on a condition of probation or communitycontrol while serving an illegal sentence.” Jackson v. State,654 So.2d 234 (Fla. 4th DCA 1995), receded from to theextent that it prohibits revocation where the violation occursduring the lawful part of the sentence, Collins v. State, 697So.2d 1305 (Fla. 4th DCA 1997). See also Taylor v. State,702 So.2d 487 (Fla.1997).

(33) “Any time previously spent on community control must becredited against a newly imposed term of probation toensure that the combined terms of incarceration andprobation or community control do not exceed thestatutory maximum. Waters v. State, 662 So.2d 332 (Fla.1995). Davis v. State, 667 So.2d 885 (Fla. 1st DCA 1996).

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(34) Where a defendant’s probation is revoked and he or she issentenced to a new term of probation, credit for the timeserved on probation is only required if it is necessary toavoid having the combined term of probation exceed themaximum period of incarceration. Olson v. State, 654So.2d 304 (Fla. 3d DCA 1995).

(35) The defendant was initially sentenced to one year of probationfollowed by four years of community control on a third degreefelony. Three years later his probation was revoked and hewas sentenced to four years prison, followed by one year ofprobation. He only received credit for 76 days spent in jailbefore the imposition of sentence. He received no credit forthe time previously spent on probation and communitycontrol. This was error. The court discussed the ramificationsof the decision in Waters v. State , 662 So.2d 332 (Fla. 1995).“In this case, the total period of community control andprobation already served, together with the new split sentenceof imprisonment and probation, exceed the five-yearmaximum for a third degree felony. Pursuant to Waters,Appellant is entitled to credit for the time previously spenton probation and community control against theprobation portion of the split sentence under review.”Meader v. State, 665 So.2d 344 (Fla. 4th DCA 1995).

(36) The defendant’s probation was revoked and he wascommitted to two years community control. He had alreadycompleted one year of community control as a specialcondition of his probation. The statutory maximum forcommunity control is two years. Thus, the defendant wasentitled to credit for the one year community control andshould not have been sentenced to more than one year ofcommunity control on the violation. McGehee v. State, 688So.2d 1008 (Fla. 1st DCA 1997).

(37) Where one is found guilty of a violation of communitycontrol, he or she “‘must be given credit for time served injail and on community control so that the total sentencefor community control on the same offense does notexceed the two year maximum.’” Unlike probation, themaximum term of community control is two years. Dupree v.State, 708 So.2d 968 (Fla. 1st DCA 1998).

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(38) On a revocation of community control, the defendant wassentenced to 15 months jail, followed by a term of probation.“Since the sentence imposed by the trial court followingthe revocation of community control included a period ofprobation, the trial court must give credit for the timepreviously served on community control and thecombination of new sanctions imposed together with thecredit for community control must not exceed themaximum for the underlying offense.” McDaniel v. State,704 So.2d 686 (Fla. 1st DCA 1997).

(39) The defendant was entitled to credit for community controlbecause it “was not his fault that the trial court imposedan illegal sentence.” State v. Sanders, 728 So.2d 777 (Fla.2d DCA 1999).

(40) Defendant was sentenced to four years incarceration followedby one year of community control on a third degree felony.With all of the appropriate credit, the defendant served thefour year incarcerative portion of his sentence in a total ofabout three years. He then started serving his communitycontrol. In the first five months of his one year communitycontrol an affidavit was filed alleging a violation ofcommunity control. About six weeks after the affidavit wasfiled, the defendant admitted the violation. The trial courtrevoked his community control and sentenced the defendantto 18 months of community control. One year after the 18-month term was imposed the defendant raised the legality ofthe sentence for the first time on appeal. He argued that whenthe 18 months was added to the four years incarceration thesentence was illegal because it exceeded the five yearsmaximum sentence. On appeal, the court agreed. “A sentencewhich exceeds the statutory maximum for the offense maybe raised at any time because such error is fundamental.(citations omitted) ‘Even with a defendant’s assent, thecourt is without jurisdiction to impose a sentence in excessof the statutory maximum.’” The court suggested that on theviolation the trial court could sentence the defendant to sevenmonths of community control because there was sevenmonths of the original one year lawful term of communitycontrol remaining after the filing of the affidavit. An issuewas whether the defendant had waived credit for one yeartime served because there was a hand written statement in a

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plea agreement signed three days before the defendantadmitted the violation that the defendant agreed to three yearscredit for time served and waived all other credit.Nevertheless, the court held that there was no waiver of thecredit because “a waiver of jail time credit must be clearlyshown on the record and must be specific and voluntary.”Henderson v. State, 720 So.2d 1121 (Fla. 4th DCA 1998).See also Robinson v. State, 850 So.2d 658 (Fla. 1st DCA2003); Erickson v. State, 760 So.2d 983 (Fla. 1st DCA2000); Autrey v. State, 736 So.2d 94 (Fla. 4th DCA 1999).

(41) The defendant “was originally sentenced to concurrent termsof fifteen years of probation for sexual battery and for twocounts of handling and fondling a child under sixteen years ofage. Upon revocation of probation, the court imposed ageneral sentence as to all three offenses of one year ofcommunity control, followed by fourteen years of probationwithout giving [the defendant] credit for time previouslyserved on probation.... [I]t was error not to give Schwartzcredit for the time he had already spent on probation for thetwo second-degree felonies of handling and fondling a child.The statutory maximum for these felonies is fifteen years inprison. See §§ 800.04(1), 775.082(3)(c), Fla. Stat. (1995).The total sentences imposed for these two felonies, withoutcredit for time already served on probation, exceeds boththe statutory maximum and the guidelines, and therefore,must be reversed.” (citations omitted). Schwartz v.State,774 So.2d 25 (Fla. 2d DCA 2000).

(42) “Upon revocation of probation, the time served onprobation for a given offense must be credited toward anynew term of probation imposed for that same offense,when necessary to ensure that the entire term ofprobation does not exceed the statutory maximum for anoffense. (citations omitted) Under these circumstances, theprobationary period is not a sentence within the meaning ofsection 948.06. (citation omitted). Accordingly, section948.06 does not apply.... Because Langley had alreadyserved more than five years on probation when hisprobation was revoked, the trial court had no authority toimpose any additional probation for these offenses.”Langley v. State, 839 So.2d 826 (Fla. 4th DCA 2003).

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(43) “When a court imposes a subsequent term of supervisionfollowing a revocation of probation or community control, itshall not provide credit for time served while on probation orcommunity control toward any subsequent probation orcommunity control. See, e.g., State v. Cregan, 908 So.2d 387(Fla.2005). Any subsequent probationary sentence cannotexceed the maximum penalty allowable under section775.082, Florida Statutes (2003), when combined with anyamount of time served on the preceding terms ofprobation or community control. Cregan, 908 So.2d at 390;§ 948.06(3), Fla. Stat. (2003). Here, after adjudicatingSpencer guilty in each case, the trial court sentenced her tofive year terms of probation in each case. The five year term,when combined with the time Spencer spent on communitycontrol in each case, exceeds the statutory maximum penaltythat may be imposed under section 775.082 for these crimes.”Spencer v. State, 922 So.2d 282 (Fla. 5th DCA 2006).

(44) The defendant was in jail in another county serving a sentencefor a crime committed in that county. While serving thatsentence he was arrested on a VOP warrant from anothercounty. The defendant was entitled to credit on the VOPfrom the date he was arrested even though he was inanother county serving a sentence on another charge.Barrier v. State, 987 So.2d 772 (Fla. 4th DCA 2008). But seeRansome v. State, 20 So.3d 445 (Fla. 4th DCA2009)(Barrier did not require credit on consecutivesentences).

k. Credit for time spent on probation or community control againstjail or prison.

(1) A defendant is not entitled to credit for time served oncommunity control when he is sentenced to jail for aviolation of that community control. Swain v. State, 553So.2d 1331 (Fla. 1st DCA 1989); Hill v. State, 565 So.2d 420(Fla. 1st DCA 1990). See also Robinson v. State, 850 So.2d658 (Fla. 1st DCA 2003).

(2) A defendant who is placed on probation and thensubsequently resentenced pursuant to an appellate mandatecannot receive credit for the time he spent on probationeven though he was required to serve certain hours of com-

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munity service. Such a sentence does not have “the effect ofrendering probationary time spent at liberty the equivalent offorced detention in a state hospital or county jail.” Thedefendant is only entitled to credit for such deprivations ofliberty. State v. Peters, 526 So.2d 747 (Fla. 1st DCA 1988).

(3) The defendant is not entitled to credit for time served whileon probation against a jail sentence for a violation ofprobation. Priest v. State, 603 So.2d 141 (Fla. 4th DCA1992). See also Payne v. State, 812 So.2d 600 (Fla. 5th DCA2002).

(4) A trial court must, “upon revocation of probationfollowing completion of community control, credit timepreviously served on probation and community control toany newly imposed term of imprisonment and probationfor the same offense, so that the total period of communitycontrol, probation, and imprisonment already served andto be served does not exceed the statutory maximum for asingle offense.” Waters v. State, 662 So.2d 332 (Fla. 1995).

(5) On revocation of community control the trial judge is notrequired to give the defendant credit for communitycontrol or probation against any term of incarceration.The court recognized that this can result in state-imposedsanctions that far exceed the statutory maximum term ofimprisonment (i.e. maximum probation or community controlfollowed by maximum prison), but this is clearly consistentwith the legislative intent. This case was an interpretation andapplication of the decision in Waters v. State, 662 So.2d 332(Fla. 1995). Young v. State, 678 So.2d 427 (Fla. 4th DCA1996), affirmed, 697 So.2d 75 (Fla. 1997). See also Fisher v.State, 852 So.2d 424 (Fla. 5th DCA 2003); Robinson v.State, 850 So.2d 658 (Fla. 1st DCA 2003); Griffin v. State,838 So.2d 1218 (Fla. 3d DCA 2003); Dorminey v. State, 837So.2d 528 (Fla. 2d DCA 2003); Toomajan v. State, 785So.2d 1275 (Fla. 5th DCA 2001).

(6) The defendant was placed on fifteen years probation. Hisprobation was revoked and he was sentenced to fifteen yearsin prison. The defendant argued that the sentence was illegalbecause when his prison term was added to the time that heserved on probation, it exceeded the statutory maximum term

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of prison. The trial court rejected this position. The courtaffirmed. “Section 948.06(2) provides that no part of the timethe defendant is on probation shall be considered part of thetime that the probationer shall be sentenced to serve....[P]robation is not a sentence.... In his motion Bruggemanrelies on this court’s opinion in Jones v. State, 667 So.2d 940(Fla. 2d DCA 1996), which we now acknowledge incorrectlyapplied the rule set forth in Waters v. State, 662 So.2d 332(Fla. 1995). In Waters, the supreme court held that, if the trialcourt includes probation as part of a sentence imposed uponrevocation of probation, the trial court must give credit forany time previously served on probation if the new period ofprobation together with other sanctions, including jail andprison credit, and the time previously served on probationtotal more than the statutory maximum for the underlyingoffense. Thus, Waters applies only in those cases where,after revocation of probation, the defendant is given asplit sentence of incarceration followed by probation.”Bruggeman v. State, 681 So.2d 822 (Fla. 2d DCA 1996).

(7) “Summers has not been extended to require a court toconsider terms of imprisonment, in considering whetherthe terms exceed the statutory maximum.” § 948.06(2),provides that neither probation nor community control will beconsidered as part of any time the defendant is sentenced toserve. This applies “when probation or community controlis revoked and a term of incarceration is imposed.” It doesnot apply “when defendant is placed on communitycontrol or probation in lieu of being sentenced.” In thiscase on a violation the defendant was sentenced to five yearsin prison. § 948.06 applies and the defendant will receive nocredit for the previously served probation or communitycontrol against the prison term. Phillips v. State, 651 So.2d203 (Fla. 5th DCA 1995).

(8) The defendant was sentenced after a violation to a prisonterm to be followed by more probation. When you addedthe original term of probation to the prison term and the newterm of probation it exceeded the statutory maximum, butwhen you added it only to the new term of probation it did notexceed the statutory maximum. The court found that thesentence was valid. “In Phillips v. State, 651 So.2d 203 (Fla.5th DCA 1995), this court held that State v. Summers, 642

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So.2d 742 (Fla.1994) does not apply to a case like this one,where a term of imprisonment is imposed after a defendantviolates probation. Rather, sections 948.06(1) and (2) control.They provide that after probation is revoked, the trial courtcan sentence the defendant to any sentence which it mighthave originally imposed, and that no part of the time thedefendant was on probation shall be considered as anypart of the time that the defendant shall be sentenced toserve.” Bransfield v. State, 657 So.2d 1191 (Fla. 5th DCA1995).

(9) The Fourth District disagrees with the Fifth District.“Under Phillips, a defendant could not be sentenced to apurely probationary sentence that exceeds the statutorymaximum by a single day, but he could be given a splitsentence that effectively doubles the maximum sentence byimposing a term of probation that meets the maximumfollowed by another maximum term of imprisonment.”Gonzales v. State, 658 So.2d 1091 (Fla. 4th DCA 1995).

(10) In the second case, the defendant can be sentenced to thefull jail term no matter how long he served on probationinitially, because he is not entitled to credit against jail forprobation. There is authority that a defendant is entitled tocredit against jail for community control which was illegallyimposed through no fault of the defendant. Ogden v. State,605 So.2d 155 (Fla. 5th DCA 1992).

(11) The defendant also claimed that the defendant should receivecredit for probation and community control against theincarcerative portion of the new sentence. “This argumentstretches Waters beyond its proper scope.... Nothing in theopinion extends this probation/community control creditto post revocation incarceration.” The opinion gives anexcellent explanation for this conclusion. Meader v. State,665 So.2d 344 (Fla. 4th DCA 1995).

(12) The court considered the impact of Waters v. State, 662 So.2d332 (Fla. 1995). The court held that the decision provides:“‘If the trial court includes probation as part of a sentenceupon revocation of probation, the trial court must givecredit for any time previously served on probation if thenew period of probation, together with other sanctions

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(including jail and prison credit) and the time previouslyserved on probation, total more than the statutorymaximum for the underlying offense.’.... Waters does notrequire, however that credit for time served on probationbe applied “toward the incarcerative portion of the splitsentence as the defendant argues. See Meader v. State, 665So.2d 344 (Fla. 4th DCA 1995); § 948.06(2), Fla. Stat.(1993).” Vaughn v. State, 671 So.2d 299 (Fla. 5th DCA1996).

(13) The decision in Waters does not require that on revocationof probation a defendant be given credit for any timeserved on probation against any jail sentence on theviolation. “Defendant contends that he must be givenappropriate credit against his prison term so that the sum ofthe prison term and the three years and two months previouslyserved on probation do not exceed the five-year legalmaximum. Defendant’s position is incorrect. The decision inWaters applies where, after revocation of probation, thedefendant is given a split sentence of incarcerationfollowed by probation. Waters v. State, 662 So.2d at 333.Under that circumstance, “‘If the trial court includesprobation as part of a sentence upon revocation of probation,the trial court must give credit for any time previously servedon probation if the new period of probation together withother sanctions (including jail and prison credit) and the timepreviously served on probation total more than the statutorymaximum for the underlying offense.’” Id. Russell v. State,676 So.2d 1026 (Fla. 3d DCA 1996).

(14) “It is a correct statement of the law that a defendant’s timespent on probation is not credited against a prisonsentence imposed after revocation of probation.” Moodyv. State, 681 So.2d 736 (Fla. 2d DCA 1996).

(15) Where a defendant was sentenced originally as a habitualoffender on a third degree felony to five years imprisonment,followed by three years probation, he could only be sentencedto ten years imprisonment on a revocation of probation. Hecould not be sentenced to fifteen years of imprisonment. Hewas not entitled to credit for the probation that he hadserved because no new term of probation was imposed.Waters v. State, 662 So.2d 332 (Fla. 1995). Sims v. State,

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688 So.2d 337 (Fla. 2d DCA 1996).

(16) §948.06(2) prohibits a court from giving credit forprobation or community control against a jail sentence.Dupree v. State, 708 So.2d 968 (Fla. 1st DCA 1998).

(17) “It is well established ... that credit for time served onprobation or community control is awarded only towardsa new sentence of either probation or community control,or towards the probation/community control portion of asplit sentence, not toward the prison term portion of asplit sentence. Young v. State, 697 So.2d 75 (Fla. 1997);State v. Holmes, 360 So.2d 380, 383 (Fla. 1978). This is trueeven where the prior time on probation or community control,when added to the incarcerative portion, would cause thesentence to exceed the statutory maximum for the offense.Young, 697 So.2d at 75, 77.” Pryor v. State, 704 So.2d 217(Fla. 3d DCA 1998). See also Robinson v. State, 850 So.2d658 (Fla. 1st DCA 2003); Dorminey v. State, 837 So.2d 528(Fla. 2d DCA 2003).

(18) See cases above under extensions of probation.

l. Entitlement to credit for good time and gain- time.

(1) Statutory language. §948.06(7), Fla. Stat.

(a) “Any provision of law to the contrarynotwithstanding, whenever probation, communitycontrol, or control release, including the probationary,community control portion of a split sentence, isviolated and the probation or community control isrevoked, the offender, by reason of his or hermisconduct, shall be deemed to have forfeited allgain-time or commutation of time for goodconduct, as provided by law, earned up to the dateof his or her release on probation, communitycontrol, or control release.”

(b) “This subsection does not deprive the prisoner ofhis or her right to gain-time or commutation oftime for good conduct, as provided by law, from thedate on which the prisoner is returned to prison.”

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(c) “However, if a prisoner is sentenced toincarceration following termination from a drugpunishment program imposed as a condition ofprobation, the sentence may include incarcerationwithout the possibility of gain-time or early releasefor the period of time remaining in his or hertreatment program placement term.”

(2) The defendant may waive his right to gain time as part ofa plea agreement, but he must do so freely and voluntarily.Matton v. State, 872 So.2d 308 (Fla. 2d DCA 2004). Thedefendant may also waive the right to credit for time served.Davis v. State, 869 So.2d 766 (Fla. 1st DCA 2004).

(3) Defendant is entitled to credit for time actually served, notgain time, provisional credits, or administrative gain time.Eidson v. State, 667 So.2d 247 (Fla. 1st DCA 1995).

(4) On resentencing for his violation of probation, the defendantwas entitled to credit only for the actual prison time servedduring the incarcerative portion of his original sentence.Baisch v. State, 688 So.2d 415 (Fla. 1st DCA 1997).

(5) §921.0017 Fla. Stat. eliminated all credit for any type ofgain time earned prior to the revocation of probation forany offense committed on or after January 1, 1994. Forbesv. Singletary, 684 So.2d 173, 175 (Fla. 1996). This statuteapplies to recommitment of an offender serving a splitsentence. In this case, “the trial court originally sentencedthe defendant to the unexpired balance of the ten-yearterm, namely 93.2 months. The Fifth District hasexplained that in this circumstance, upon being receivedin the Department of Corrections, the defendant mustfirst serve the forfeited 175 days (i.e. gain time) beforebeginning to serve the additional term of 93.2 months.”Moore v. State, 755 So.2d 806 (Fla. 3d DCA 2000).

VI. Enforcement by Contempt.

A. In a felony case, where the defendant had served all the authorized jail time and hisprobation had been terminated, the judge did not have the authority orjurisdiction to enter an order requiring the defendant to make restitution that

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had originally been ordered as a condition of the probation under penalty ofcontempt. Daniels v. State, 581 So.2d 970 (Fla. 5th DCA 1991).

B. The defendant failed to appear at the county jail as ordered by the court. He wasprosecuted for a violation of probation for that failure and the state sought to havehim held in contempt of court for the same conduct. The trial judge dismissed thecontempt proceeding based on double jeopardy grounds. On appeal, the courtaffirmed, stating that: (1) this situation differs from the one in State v. Newell, 532So.2d 1114 (Fla. 2d DCA 1988), because that case involved a prosecution for a newcrime and violation of probation, which was not a criminal prosecution but rather aproceeding for the violation of a court order; (2) “the criminal contempt and theviolation of probation solely are based upon [the defendant’s] violation of thesame court order;” (3) a contempt proceeding based on criminal conduct will notbar prosecution for the substantive offense committed by such conduct; (4) accordingto the Blockburger test in the absence of a clear legislative intent to the contrary,multiple convictions for the same act are impermissible; (5) in this case, thecontempt statute, §38.23, and the violation of probation statute, §948.06, do notexpress such an intent; (6) the contempt and violation of probation do notrequire proof of an element that the other does not, thus, the contempt issubsumed by the violation. State v. Woodland, 602 So.2d 554 (Fla. 4th DCA1992).

C. Where the defendant is accused of violating a special condition of probation, thetrial judge has no jurisdiction to find the defendant in indirect criminalcontempt based on that conduct because the exclusive method for dealing witha violation is set forth in §948.06 Fla. Stat. (1991). This is true even where thedefendant is serving a jail sentence prior to commencement of his term of probation.Cason v. State, 604 So.2d 928 (Fla. 3d DCA 1992). See also T.M. v. Dobuler, 959So.2d 279 (Fla. 3d DCA 2007)(same is not true of a juvenile because there is astatute authorizing punishing by contempt).

D. The decision in Hewett v. State, 588 So.2d 635 (Fla. 5th DCA 1991), was quashed.In that case, the Court held that, pursuant to §948.06(4), probation could be extendedfor failure to pay restitution even though the defendant had made a good faith effortto pay. The Court said: “[W]e do not read the above statute as authorizing anyextension of probation based on simple inability to pay restitution. Rather, the trialcourt has the choice only of 'alternate measures’ or imprisonment, with the latterbeing strongly disfavored. There is no ability to extend probation in the absence ofwilful violation of the terms of probation. Clark. Had the legislature intended theterm ‘alternate measures’ to include coercive forms of detention or control, webelieve it would have said so expressly.” The measures contemplated includecommunity service “or similar measures falling short of more coercive measuressuch as community control, probation, or imprisonment.” If the defendant fails

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to comply with the alternate measure then he or she may be subject to contemptproceedings or a probation violation if any probation remains. “Another alternativemight be entry of a judgment against the probationer, which could then beenforced against the probationer’s property under the applicable law.” Hewettv. State, 613 So.2d 1305 (Fla. 1993).

i

INDEX

Ability to payconstitutionality of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169defendant's burden. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169family resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183restitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

Admissionnotice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Affidavitallegations of arrest only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 260condition not ordered by court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 57defects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56discrepancy in dates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57errors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56failure to swear.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57good faith. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59improperly sworn. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59matters not alleged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135requirements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56sufficiency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54technical error in signing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58typo.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58unalleged violation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 57unsworn. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Arrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42Bail

denial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61first appearance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43first appearance judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110Change in nature of sentence

withhold. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Change in sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

modifications of condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Competency

presumption of incompetence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79Conditions

delegation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149, 152DNA testing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89house arrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

ii

imposed by probation officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 152imposed by receiving state. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147maintain full employment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148, 192modification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192related.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 161search property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88sexual offender therapy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154time for completion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208, 303unannounced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147unrelated.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 153vagueness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Confrontation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95Contempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364Controlling rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Controlling statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Counseling

completion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258evaluation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252, 253evidence of absconding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259required by probation officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252sex offender counseling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244, 246time for completion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

Credit for time served. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330Criminal Punishment Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341custody. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331delay in serving warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340good time and gain- time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363jail time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336multiple offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341original sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341place were time was served. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331probation or community control against jail or prison.. . . . . . . . . . . . . . . . . . . . . . . . . . 358probation, community control, and jail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331time served originally as a condition of probation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344unrelated charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344waiver.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364waiver of gain time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364

Discovery violationwitness exclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Dismissalauthority of court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Double Jeopardy

iii

addition of mandatory condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2contempt.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, 108enhance a condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106modifications of condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12new affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106prosecution for new crime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107second hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107-109

Driving while license was suspendedknowledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285

Due processfull hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77lost affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Elements for revocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162ability to pay.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168completion of counseling and programs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237constructive knowledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163court imposed condition.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163establishing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162knowledge of conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162notice of general conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163notice of proscribed behavior.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226substantial noncompliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226technical requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226verbal pronouncement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163willfulness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162, 167, 185

Extension of term of probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17agreement by defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17no affidavit filed.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18request by defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Failure to follow probation officer's instructions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158Failure to report

No per se rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228sufficiency of evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

Fair hearingvindictiveness.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

General conditionsunannounced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146unannounced and unwritten. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Hearsaynew crimes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131unobjected to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 129

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Invalid conditionsconditions involving intoxicants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156conditions ordered by probation officer. . . . . . . . . . . . . . . . . . . . . . . . . . 157, 158, 165, 167costs and fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155credit on sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158house arrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147maintain full employment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156new conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159restitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155, 156unannounced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 142, 144-147waiver.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Judgment & sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306add conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328continue probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328credit for time served. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330extension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327financial matters.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324form and procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306habitual offender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325license suspension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329misdemeanors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315modify probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327oral announcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307sentencing options. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312split sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317suspended prison time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317youthful offenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18absconding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 35, 39affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18affidavit and warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 30agreement to illegal sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40amended affidavit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-31amended affidavit no warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28amendment to affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36arrest by probation supervisor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21booking affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21burden. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22community control expired term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37conviction on another charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35crime report affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25date of termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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early termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 38execution of warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19expiration of extended term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42expiration of term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 23, 24, 29-31, 41filing information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19filing of affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31, 347filing of affidavit alone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32filing of warrant alone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33illegal sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 37, 38, 40incarceration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35incarceration on another charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36jail as a condition of probation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24jail in another jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35meaning of "month". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37misdemeanor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37notice to appear. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19period during which violation may be filed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25probation tolled while serving time on other charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36relation back.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31restitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40reversal of revocation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25served maximum sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41statutory provision on tolling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 347subsequent affidavits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31successor judge on vop. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 74term begins to run. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38term exceeds statutory max. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 40term has not begun to run.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-27time of violation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23tolling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 35unlisted charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18warrantless arrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Modificationaddition of mandatory condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Modification of conditions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1agreement by defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8-10changing recipient of restitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12contact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11, 12costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15counseling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4curfew. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11finding of violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13imposition of costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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increased contact with children. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 11mandatory.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16nature of 60 day period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8no finding of violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 11, 12restrictions on travel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5sex offender probation as to residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16sex offender treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14statutorily mandated conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7waiver of double jeopardy objection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 13

Neutral magistratequestions by judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

New crimes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260acquittal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270arrest as basis for violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260confession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264crime not charged.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262, 263dismissal for failure to establish a prima facie case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 271dismissed charges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263, 264drug charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271exploitation of elderly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285grand theft. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284hearsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268-270, 285identification of crime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263lesser offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262, 263mere suspicion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 284nolle pross. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264nolo plea as proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267, 268nondrug charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280plea to new charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265proof by hearsay plus non-hearsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118, 120, 124reasonable hypothesis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 284theft. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268uncounseled plea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264, 265witness tampering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

No contact orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291, 294association with criminals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295violations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

Notice

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amended affidavit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78amendment at hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76fundamental error.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78lost affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74oral announcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

Notification letter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44Power of court

dismissal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54Pretrial release

dangerous determination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47sexual offenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47violent offenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Probationannouncement of conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Procedure for hearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110nature of proceeding.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53right to be heard on sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70role of judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65-67, 71same time as hearing on motion to suppress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 72

Procedure for violationcourt's duty after hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52hearing required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52notice to appear. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Proceedingscounty or circuit of arrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46first appearance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43statutory language. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42violation admitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45violation not admitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Proof of actcompletion of specific requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303employment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304intoxicants and drugs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286reporting and procedural requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298testing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304travel and movement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288

Proof of drug chargeopinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278

Removal of counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105Reports

false report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235

viii

Restitutionability to pay.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182hearsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133mental illness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210public records as proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Revocationmatters not alleged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Right to counseladmission of violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104continuance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106privately retained. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106suspended jail.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104time to prepare. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Rightshearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62notice of violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55plea colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80public trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 72

Rights of defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60absence of affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72bail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61closing argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70confer with appointed counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 103confer with attorney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 99confront witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95confrontation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99cross-examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81double jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106exclusionary rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83fair judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71interpreter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60open and public hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72plea colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 81presence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60res judicata. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108search and seizure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83self representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99-102self-incrimination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96speedy trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98waiver of right to counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 102, 103

Rules of evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

ix

absence of records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134affidavits and other documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135circumstantial evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135defendant's silence, admissions, and testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134hearsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111judicial notice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Self-Representationstand-by counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101sufficiency of inquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Sentenceconditions of probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344

Sentence on violation of probation or community controlcredit for time served in jail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355credit for time served on community control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355

Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312add conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328adjudication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312concurrent time at original sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314continue probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328counsel originally denied. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315credit for time served. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330Criminal Punishment Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341duration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313extend.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327financial matters.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324habitual offender treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325license suspension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329misdemeanor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315modify. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327options on violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311reliance on prior vops.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311restitution lien. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313revoke probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312split sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317suspended sentences.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317true split sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314youthful offenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

Sex offenderelectronic monitoring. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

Sex offender probationpossession of pornography.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

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Special conditionsannouncement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Standard conditionsunannounced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Substantial violationcurfew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225failure to attend counseling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237, 240, 243failure to attend G.E.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255failure to file reports.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 230late reporting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226missing curfew. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236missing one session. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254time for completion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246, 251, 252time for completion of conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254unexcused absences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256vagueness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253, 254

Sufficiency of evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116arrest affidavits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129commission of new drug charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275, 286drugs in jointly occupied vehicle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276exception to hearsay rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 114, 116excessive use of intoxicants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275, 286excited utterance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117hearsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129hearsay combined with nonhearsay. . . . . . . . . . . . . . . . . . . . . . . . . 118, 120-122, 124, 304lab report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 132, 133matters not alleged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135moved from residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290new crime.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 127prior inconsistent evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125prior inconsistent statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117probation officer reading another officer's notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302receipts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112record of probation office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131records of community service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133records of victim services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133validity of condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139waiver of invalidity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139, 148

Tollingcredit on dismissal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33dismissal of violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45evidentiary hearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40filing of affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

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sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46supervision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Validity of conditionannounced conditions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141announcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142, 144conditions of release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167electronic monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167examples of waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148waiver.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139, 148

Violations of probationadmissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116change of residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296, 297completion of counseling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127condition imposed in violation of double jeopardy clause. . . . . . . . . . . . . . . . . . . . 11, 159credit for time served. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345defendant's right to be heard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70exclusionary rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86failure to file a report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 230failure to remain at residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298failure to report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221failure to report upon release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187financial requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183hearsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 128hearsay without objection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133invalid condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141lesser-included. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262multiple grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310neutrality of judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65notice of being on probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221notice of violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183proof of ability to pay.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183questioning by judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64restitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182right to be heard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70role of judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65self-representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70stand-by counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101suspended license.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285term of probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37unspecified condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 253willfulness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 128, 209, 221written order required.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307

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allow probation officer to visit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208confusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208time for completion of conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208, 303truthfulness to probation officer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

Waiveracceptance of probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141accepting benefits of plea.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156failure to object at time of sentence. . . . . . . . . . . . . . . . . . . . . . . . . 139, 140, 157, 160, 161failure to raise issue in trial court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148, 152illegal sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155invalid condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 162no objection or motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139right to hearing in drug court contract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73submitting to condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160taking advantage of benefits of probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154taking advantage of invalid condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139-141, 148vague conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Willfulnessability to earn money. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180ability to pay.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168ability to pay cost of super. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181alcoholic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208belief probation terminated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221beyond control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189completion of conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180change of residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205community service hours. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194-198completion drug treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237completion of community service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217completion of counseling and programs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258conditions unrelated to payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185confusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187, 194, 207, 208, 215contact by victim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220contact with drugs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217, 218counseling for sex offenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243, 246, 249curfew. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223, 224de minimis conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217employment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187evaluations order by p.o.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256failure to complete counseling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246failure to follow instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300failure to keep appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191failure to pay installments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175failure to report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187, 191, 192, 232, 233

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failure to take medication.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209funds to complete program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251futile act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187GED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189illness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186, 208, 209inability to pay for program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255inadvertence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186incarcerated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185, 216instructions to call. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220knowledge of conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206, 207lack of notice of conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221lay testimony on competence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212medical emergency.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218mental disorder.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209mental illness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209-211minimal absence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200minor matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217negligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193, 199, 200, 214no contact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203, 204no per se rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215no time requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 190notice of conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246reason for leaving program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256reasonable effort to comply. . . . . . . . . . . . . . . . . . . 167, 181, 186, 188, 202, 204, 205, 213reasons for failure to attend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257rejection from counseling.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255restrictions on residence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218routine supervision.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300rules imposed by counselor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257staying too long at church. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217time for completion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194, 198, 204, 214, 303, 304time for completion of conditions. . . . . . . . . . . . . . . . . . . . . . . . . . 243, 249, 251-254, 258transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215unrebutted testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200vagueness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206, 290written reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187