Florida District Courts of Appeal, 2015

Tyson v. State

Tyson v. State
Florida District Courts of Appeal · Decided January 6, 2015 · Padovano, Swanson, Wetherell
153 So. 3d 989; 2015 Fla. App. LEXIS 88; 2015 WL 63613 (Southern Reporter, Third Series)

Tyson v. State

Opinion of the Court

PER CURIAM.

The order modifying and extending the appellant’s probation is reversed. See Van *990Wagner v. State, 677 So.2d 314 (Fla. 1st DCA 1996). Because the prior probationary term was set to expire on November 9, 2018, on remand the appellant’s probation shall be deemed to have terminated as of that'2013 date.

REVERSED.

PADOVANO and WETHERELL, JJ. concur, and SWANSON, J., concurs WITH OPINION.

Concurring Opinion

SWANSON, J.,

CONCURRING.

A trial court has broad discretion to decide if a probationer has violated a condition of probation. Williamson v. State, 43 So.3d 843 (Fla. 1st DCA 2010). However, “[t]o 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). That did not happen in this case. The trial court made no finding that appellant had willfully and substantially violated the terms of probation. Frankly, based on a review of the record, the evidence would not have supported such a finding.

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