Lydia Ann Rush v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: August 15, 2016
• Docket: 15-4791
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

LYDIA ANN RUSH, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D15-4631 and 1D15-4791 (Consolidated) STATE OF FLORIDA,

Appellee. ____________________________/

Opinion filed August 12, 2016.

An appeal from the Circuit Court for Okaloosa County. William F. Stone, Judge.

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant Lydia Ann Rush appeals from the trial court’s order revoking her

probation and imposing a prison sentence following the court’s finding that she

willfully and substantially violated a condition of her probation. Appellant argues that

the evidence does not support a finding that her violation was willful, and the record supports her argument. Furthermore, the State concedes error. See State v. Carter, 835

So. 2d 259, 261 (Fla. 2002) (“Trial courts must consider each violation on a case-by-

case basis for a determination of whether, under the facts and circumstances, a

particular violation is willful and substantial and is supported by the greater weight of

the evidence.”); Van Wagner v. State, 677 So. 2d 314, 317 (Fla. 1st DCA 1996)

(“Where a probationer makes reasonable efforts to comply with a condition of

probation, violation of the condition cannot be deemed ‘willful.’”). Accordingly, we

reverse and remand for Appellant’s probation to be reinstated.

B.L. THOMAS, ROWE, and WINSOR, JJ., CONCUR.