NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JAY GOERS, )
)
Appellant, )
)
v. ) Case No. 2D15-338
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed June 15, 2016.
Appeal from the Circuit Court for Polk
County; Glenn T. Selby, Judge.
Howard L. Dimmig, II, Public Defender,
and Cynthia J. Dodge, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Chelsea S. Alper,
Assistant Attorney General, Tampa, for
Appellee.
SLEET, Judge.
Jay Goers appeals his judgment and sentence following the revocation of
his probation. Because the State failed to prove that Goers willfully violated a
substantial condition of his probation, we reverse and remand for the reinstatement of
his supervision.
In exchange for his plea to failing to register as a sex offender, Goers was
initially sentenced to five years' probation. Shortly thereafter, the State filed an affidavit
alleging that Goers violated condition three, which required that he "not change [his]
residence . . . without first procuring the consent of [his] officer," and condition nine,
which required that he comply with all instructions given by his probation officer. At the
subsequent violation hearing, the State put on evidence that Goers changed the
address on his driver's license without the prior permission of his probation officer. It
was undisputed that Goers did not move to the new address nor did he intend to move
until after it had been approved by his probation officer and that he received approval of
the new address from the sheriff's office prior to changing his license. Goers' probation
officer testified that he called and left a message with her office regarding the proposed
new address and that he provided a copy of his new driver's license immediately after
the change. She also explained that one of Goers' probation goals was to obtain
permanent housing and that she ultimately approved the new address after she visited
and checked it for compliance. Based on this evidence, the trial court found that Goers
willfully and substantially violated his probation, revoked Goers' probation, and
sentenced him to fifty months' prison.
"To 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." Lynom v. State, 816 So. 2d 1218, 1221 (Fla. 2d DCA 2002).
On appeal, the State does not dispute that Goers never actually moved from his
approved temporary housing. Instead, it argues that when Goers changed the address
on his license it amounted to a change of residence and that he thereby willfully and
substantially violated conditions three and nine of his probation. We disagree.
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"[T]he language used in a condition of probation is determinative of a
probationer's duties and responsibilities while on probation." Odom v. State, 15 So. 3d
672, 677 (Fla. 1st DCA 2009) (alteration in original) (quoting Stanley v. State, 922 So.
2d 411, 414 (Fla. 5th DCA 2006)). The express language of condition three required
Goers to obtain the consent of his probation officer before changing his residence.
Goers' probation order made no reference to whether he needed that same permission
to update his driver's license. The evidence presented at the hearing showed that
Goers reasonably complied with conditions three and nine and that any failure on his
part to comply completely did not amount to a willful or substantial violation. See
Lynom, 816 So. 2d at 1221 ("Where a probationer makes reasonable efforts to comply
with a condition of probation, violation of the condition cannot be deemed 'willful.' ");
Hines v. State, 789 So. 2d 1085, 1087 (Fla. 2d DCA 2001); Odom, 15 So. 3d at 675
("Reasonable efforts to comply with a condition of probation cannot be deemed a willful
violation.").
The undisputed evidence reflected that Goers did not physically change
his residence without his probation officer's consent. Therefore, the State has failed to
prove a violation of condition three. Because Goers did not violate condition three, he
did not fail to comply with his probation officer's instruction "to comply with all terms and
conditions of probation." Therefore, the State has also failed to prove a violation of
condition nine. Accordingly, the trial court abused its discretion when it revoked Goers'
probation. We reverse Goers' fifty-month prison sentence and remand for the trial court
to reinstate his probation.
Reversed and remanded with instructions.
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LaROSE and SALARIO, JJ., Concur.
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