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Probation violations should be considered on a case-by-case basis rather than pursuant to some blanket rule that a type of violation in and of itself would justify probation revocation.

Probation has long been utilized as an alternative to incarceration. Sometimes it is imposed without any incarceration and other times it is imposed to follow imprisonment. In either case, it is a tool available in the justice system that serves many purposes including relieving overcrowding in prisons, helping to rehabilitate those charged with crimes and providing a method of supervising and monitoring those who have committed crimes.

Brown v. State, 32 Fla. L. Weekly D1068a (Fla. 2d DCA May 2, 2012) involved the revocation of probation based upon the violation of a curfew. The case sets forth an informative analysis of the law concerning revocation of probation and addresses the treatment by the Circuit Court of a minor violation.

The defendant was convicted of lewd and lascivious molestation on a 15 year old. He was sentenced to five years incarceration, followed by five years of probation. Upon release from prison, Mr. Brown entered probation. After two years, his probation. was revoked due to not being home as required by probation.

Other than this one event of violating his curfew, Mr. Brown had been completely successful in meeting all requirements of probation.

On the night when he was late and missed his curfew, the probation officer went to his house and as the officer was preparing to leave, he saw Mr. Brown driving home. Mr. Brown explained that he had gone to his brother's house to pick up job applications and that his brother was late. Mr. Brown waited for his brother, obtained the job applications and came home. His arrival home was 25 to 30 minutes beyond the curfew because his brother had been late in arriving home.

At the hearing on the probation violation, the judge found Mr. Brown guilty of violating probation and concluded that the state had "proven by competent substantial evidence that the defendant . . . has violated his conditions of probation, specifically his curfew." The Circuit Judge went on to state that it considers all terms of probation serious and curfew conditions extremely serious. The judge then sentenced Mr. Brown to 13 years incarceration.

The District Court of Appeal reviewed the applicable law. In order to revoke a defendant's probation the facts of the case must demonstrate a willful and substantial violation which the state had to prove by the greater weight of the evidence. Anthony v. State, 854 So. 2d 744, 747 (Fla. 2d DCA 2003). In reviewing a revocation of probation, the appropriate standard is abuse of discretion. Under such a standard the appellate court must determine whether the trial court acted in an arbitrary, fanciful, or unreasonable manner in determining whether the violation was willful and substantial. Smith v. Carter, 835 So. 2d 259, 262 (Fla. 2002). In Carter the Florida Supreme Court held that it is an abuse of discretion to apply a per se rule that certain single violations are not substantial as a matter of law. The Supreme Court went on to state that a trial court must consider each violation on a case by case basis to determine whether it is substantial.

The decision to revoke a defendant's probation should be made only when the probation violation is both willful and substantial so as to indicate that probation is not working for the particular defendant. State v. Carter at 262 and Ortiz v. State, 54 So. 2d 1020, 1022 (Fla. 2d DCA 2011).

At the probation violation hearing, the defendant admitted that he was late. The defendant, as well as the defendant's brother, testified that the information provided to the probation officer was correct. The defendant also put forth a letter from his sex therapist indicating he was an active participant in therapy and has made satisfactory progress and was capable of successfully completing the treatment. The probation officer testified that but for the curfew violation, the defendant had met all terms of probation.

Under those facts, the Second District Court of Appeal ruled that there was simply no basis to conclude that Brown was unfit for probation. It also held that revocation was "patently unfair" on these facts and that the trial court abused its discretion.

In discussing the trial court's errors, the appellate court noted that one error was the trial court's conclusion that the state had "proven by competent substantial evidence that the defendant . . . has violated his conditions of probation." The appellate court noted that this was incorrect and that the state's burden was actually to prove its case by a greater weight of the evidence. The appellate court went on to state that the trial court had failed to perceive the difference between the burden of proof on a party and the requirement that findings of fact be sustained if supported by competent substantial evidence. It is noted that the two are different concepts, although they are related.

The court also noted that in revoking the probation, the trial court appeared to have applied a prohibited per se rule for revocation. It also noted the trial court made no findings on willfulness or substantiality other than its blanket assertion that curfew violations are extremely serious.

Probation violations as noted by the court in Brown and the Supreme Court in Cartershould be considered on a case-by-case basis rather than pursuant to some blanket rule that a type of violation in and of itself would justify probation revocation.

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