808 So. 2d 265

Kelly Alberto LUCES, Appellant, v. The STATE of Florida, Appellees.

No. 3D01-464.

District Court of Appeal of Florida, Third District.

Feb. 20, 2002.

Bennett H. Brummer, Public Defender and Ray Taseff, Assistant Public Defender, for appellant.

*266Robert A. Butterworth, Attorney General, and Darien M. Doe, Assistant Attorney General, for appellee.

Before FLETCHER and SORONDO, JJ., and NESBITT, Senior Judge.

PER CURIAM.

Kelly Alberto Luces, appeals the revocation of his probation. Luces was charged by information with one count of aggravated stalking and two counts of violation of injunction against domestic violence. Following a plea of guilty, Luces was placed on three years probation, with the general condition that he “live without violating the law” and the special condition that he “not associate in any-way” with Nancy Fernandez, the victim in the case. Luces noted to the court that he and Fernandez had a child together and that the child lived with Fernandez. The trial court explained that Luces would have to work out a visitation schedule in family court and that Luces was not to have any contact with Fernandez outside the orders of the family court. Thereafter, an affidavit of revocation of probation was filed and some weeks later amended. The initial affidavit alleged that Luces had violated probation by sending a Halloween card and note to the child. The amended affidavit reiterated the violation based on the card and further alleged that Luces had been instrumental in having a third party make telephone calls to Fernandez from jail.

To revoke probation or community control, a violation must always be determined to have been willful and substantial. See State v. Meeks, 789 So.2d 982 (Fla.2001); Thomas v. State, 760 So.2d 1138 (Fla. 5th DCA 2000); McCray v. State, 754 So.2d 776 (Fla. 3d DCA 2000); Inman v. State, 684 So.2d 899 (Fla. 2d DCA 1996); Green v. State, 620 So.2d 1126 (Fla. 1st DCA 1993). We agree with the probationer that in the instant case there was insufficient evidence of a willful and substantial violation of probation.

The no contact provision of Luces’s probation order did not prohibit Luces’s written correspondence with his child. The holiday card sent to his two-year-old daughter was consistent with the hypothesis that Luces intended only to have contact with the child.1 Also, there was no evidence that Luces orchestrated the telephone calls made to Fernandez.2 *267They originated from a facility from which Luces had been transferred more than a week before the calls were made. Thus, the state’s theory that Luces stood next to the caller appears logistically impossible.

Accordingly, the order revoking probation is reversed.

Luces v. State
808 So. 2d 265

Case Details

Name
Luces v. State
Decision Date
Feb 20, 2002
Citations

808 So. 2d 265

Jurisdiction
Florida

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!