IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
RANDOLPH ALEX NOT FINAL UNTIL TIME EXPIRES TO
LAWHORN, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D13-2411
v.
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 2, 2014.
An appeal from the Circuit Court for Alachua County.
David A. Glant, Judge.
Nancy A. Daniels, Public Defender, and Richard M. Bracey, III, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney
General, Tallahassee, for Appellee.
VAN NORTWICK, J.
Randolph Alex Lawhorn challenges the revocation of his community
control. Because the record contains no evidence that Lawhorn willingly violated
a substantial condition, we reverse.
An affidavit of violation averred that Lawhorn violated a single condition of
his community control by being “away from his approved residence . . . without
prior approval of the [community control] officer. . . .” At the subsequent hearing,
the community control officer testified that she arrived at Lawhorn’s residence on
December 13, 2012, at 2:34 p.m. Lawhorn was not at home. Someone at the
residence, the officer did not know her identity, advised that Lawhorn had gone to
the store. The officer testified that Lawhorn did have permission to be away from
the residence at this time to walk his child home from school; she added that
Lawhorn had permission to go the store at a later point in the day. The officer
drove away from the residence on the road Lawhorn would have walked from
school. She did not see him. She did not go to the store, nor did she go to the
school to confirm he was not there. The community control officer was the only
witness called, and she closed her testimony by stating that she never said the
violation was “willful.”
At the conclusion of the hearing, the trial court announced:
I'm going to find that there was a violation in this case.
But I'm not going to find that it was substantial in this
case, only because of the information provided by [the
community control officer] during her testimony. . . .
Now, I am finding you in violation here but I'm not going
to find it to be a substantial one. Therefore, I'm going to
simply reinstate you to the same terms and conditions of
community control.
2
While “[t]he trial court is vested with broad discretion to determine whether
a probationer has violated a condition of probation,” Williamson v. State, 43 So. 3d
843, 845 (Fla. 1st DCA 2010), “[t]o establish a violation of probation, the
prosecution must prove by a preponderance of the evidence that a probationer
willfully violated a substantial condition of probation.” Van Wagner v. State, 677
So.2d 314, 316 (Fla. 1st DCA 1996) (citing Salzano v. State, 664 So. 2d 23 (Fla.
2d DCA 1995); Thorpe v. State, 642 So. 2d 629, 629 (Fla. 1st DCA 1994)); see
also Lindsay v. State, 54 So. 3d 638 (Fla. 1st DCA 2011). Because the only
evidence failed to establish that any violation was willful and the trial court did not
find the lone violation to be substantial, the revocation must be reversed.
REVERSED.
ROBERTS, AND CLARK, JJ., CONCUR.
3