Royal v. State

District Court of Appeal of Florida

Royal v. State

996 So. 2d 948, 2008 Fla. App. LEXIS 18613, 2008 WL 5191677

CourtDistrict Court of Appeal of Florida

DecidedDecember 12, 2008

DocketNo. 2D07-5462

StatusPublished

This text of 996 So. 2d 948 (Royal v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Royal v. State, 996 So. 2d 948, 2008 Fla. App. LEXIS 18613, 2008 WL 5191677 (Fla. Ct. App. 2008).

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Opinion

STRINGER, Judge.

Donald Frederick Royal seeks review of the trial court’s order revoking his probation and his resulting judgment and sentence. The court revoked Royal’s probation based on its findings that Royal willfully and substantially violated conditions four and eight of his probation. We affirm the finding that Royal violated condition eight by committing the new law violation of driving with a suspended license, and we decline to comment further on the issue. We reverse the finding that Royal violated condition four of his probation by leaving his county of residence without permission because the State did not present evidence to refute Royal’s testimony that he did have permission to leave the county. See Hicks v. State, 890 So.2d 459, 462 (Fla. 2d DCA 2004) (holding that defendant did not willfully violate his probation by operating a kiosk in a mall because his probation officer gave him tacit permission to do so); McCarty v. State, 978 So.2d 249, 249 (Fla. 5th DCA 2008) (holding that defendant’s discharge from one branch of a drug treatment program was not a willful violation of probation because his probation officer had authorized the defendant to report to another branch). Because we are unable to determine whether the trial court would have revoked Royal’s probation based solely on the evidence of the new law violation, we reverse and remand for reconsideration. See Gary v. State, 987 So.2d 180, 182 (Fla. 2d DCA 2008).

Affirmed in part, reversed in part, and remanded.

FULMER and VILLANTI, JJ., Concur.

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STRINGER, Judge.

Donald Frederick Royal seeks review of the trial court’s order revoking his probation and his resulting judgment and sentence. The court revoked Royal’s probation based on its findings that Royal willfully and substantially violated conditions four and eight of his probation. We affirm the finding that Royal violated condition eight by committing the new law violation of driving with a suspended license, and we decline to comment further on the issue. We reverse the finding that Royal violated condition four of his probation by leaving his county of residence without permission because the State did not present evidence to refute Royal’s testimony that he did have permission to leave the county. See Hicks v. State, 890 So.2d 459, 462 (Fla. 2d DCA 2004) (holding that defendant did not willfully violate his probation by operating a kiosk in a mall because his probation officer gave him tacit permission to do so); McCarty v. State, 978 So.2d 249, 249 (Fla. 5th DCA 2008) (holding that defendant’s discharge from one branch of a drug treatment program was not a willful violation of probation because his probation officer had authorized the defendant to report to another branch). Because we are unable to determine whether the trial court would have revoked Royal’s probation based solely on the evidence of the new law violation, we reverse and remand for reconsideration. See Gary v. State, 987 So.2d 180, 182 (Fla. 2d DCA 2008).

Affirmed in part, reversed in part, and remanded.

FULMER and VILLANTI, JJ., Concur.

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996 So. 2d 948, 2008 Fla. App. LEXIS 18613, 2008 WL 5191677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/royal-v-state-fladistctapp-2008.

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