Gessner v. State

890 So. 2d 565, 2005 WL 74768

• Court: District Court of Appeal of Florida
• Decided: January 14, 2005
• Docket: 2D04-1652
• Status: Published

Opinion

890 So.2d 565 (2005)

Edward GESSNER, Appellant,
v.
STATE of Florida, Appellee.

No. 2D04-1652.

District Court of Appeal of Florida, Second District.

January 14, 2005.

James Marion Moorman, Public Defender, and Jack W. Shaw, Jr., Special Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Edward Gessner appeals the revocation of his probation based on the violation of two conditions. We reverse the order of revocation of probation as to both conditions.

First, the trial court found that Gessner violated condition twenty-five of his probation, which required Gessner to successfully complete an out-patient sex offender treatment program. However, the order of probation did not provide a scheduled time for him to successfully complete the program nor did it provide how many chances Gessner would have to complete the program. Because Gessner had time remaining on his probation for him to successfully complete an out-patient sex offender treatment program, the State did not establish a willful and substantial violation. See, e.g., Wilkerson v. State, 884 So.2d 153 (Fla. 2d DCA 2004); Mitchell v. State, 871 So.2d 1040 (Fla. 2d DCA 2004); Davis v. State, 862 So.2d 931 (Fla. 2d DCA 2004); Lawson v. State, 845 So.2d 349 (Fla. 2d DCA 2003). But see Woodson v. State, 864 So.2d 512 (Fla. 5th DCA 2004). As we did in Mitchell, we certify conflict with the Fifth District's decision in Woodson.

In addition, the trial court found that Gessner violated condition five by failing to change his address with the Department of Motor Vehicles within forty-eight hours. We conclude, based on the review of the record, that the State did not prove by a preponderance of the evidence that Gessner willfully and substantially violated condition five.

Accordingly, we reverse the order of revocation and remand for the trial court to reinstate Gessner's probation.

Reversed and remanded; conflict certified.

CASANUEVA and STRINGER, JJ., and THREADGILL, EDWARD F., Senior Judge, concur.