07-2033 RONALD J. MICHAEL, v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 07-2033

Case Date: 10/07/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA RONALD J. MICHAEL, Appellant, v. STATE OF FLORIDA, Appellee. ___________________________/ Opinion filed October 7, 2008. An appeal from the Circuit Court for Alachua County. David A. Glant, Judge. Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Bill McCollum, Attorney General, and Shelly A.R. Chichester, Assistant Attorney General, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NOS. 1D07-2033 & 1D07-2034

BENTON, J. Ronald J. Michael appeals an order revoking his probation, asking us to reverse the order and reinstate him to probation because the State did not prove that he willfully violated either of the conditions of his probation cited in the order as the

basis for revocation. We agree that the State's evidence was insufficient to prove a willful violation of either condition. Accordingly, we reverse the revocation order and remand with directions to reinstate him to probation. Originally Mr. Michael was placed on probation after pleading nolo contendere to charges of supplying a false written odometer statement, selling a motor vehicle with an altered odometer, fraudulent use of credit cards, and grand theft. He was placed on a five-year term of probation with conditions that (1) required that he "not contact [the] victim or [the victim's] family during the period of probation"; and (2) required him to write letters to credit card companies assuming responsibility for debts he had run up fraudulently on his employer's (the "victim's") account. The trial court decided he had willfully violated both of these conditions, revoked his probation, and resentenced him to five years in prison. We review a revocation of probation for abuse of discretion. Russell v. State, 982 So. 2d 642, 646 (Fla. 2008). "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." 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)). Both conditions at issue here are undoubtedly "substantial." See generally State v. Carter, 835 So. 2d 259 (Fla. 2002). 2

Mr. Michael was not shown to be in violation of the "no contact" condition, willfully or otherwise. The State showed only that, immediately following the sentencing hearing, Mr. Michael made reports to the Gainesville Regional Utility Board, the Florida Department of Highway Safety and Motor Vehicles, and the Florida Department of Revenue alleging various illegal activities on the part of the victim's business, his former employer. Originally, not even Mr. Michael's probation officer thought Mr. Michael's conduct constituted a violation of this condition.1 At the time he made the reports, the condition merely prohibited his "contact[ing] [the] victim or [the victim's] family during the period of probation." Making reports to governmental authorities alleging illegal practices on the part of the victim's business did not violate this condition.2 At the revocation hearing, uncontradicted evidence established that the assistant state attorney had not furnished the names of the credit card companies with pertinent

Apparently in response to complaints by the victim, however, the probation officer wrote a letter to the judge asking for his "thoughts on this matter." The record reflects that the judge noted his intention to hold a hearing to resolve the issue. Shortly thereafter, an amended violation of probation affidavit was filed, alleging a violation of the "no contact" condition. Later, at the restitution hearing, after the court learned that Mr. Michael had filed the reports, he was ordered to refrain from directly or indirectly contacting the victim ever again. We need not decide whether his admitted conduct would have violated such a modified condition. 3
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