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890 So. 2d 565

Docket No. 2D04-1652.

Gessner v. State

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

District Court of Appeal of Florida

Decided January 14, 2005.

District Court of Appeal of Florida · decided 2005-01-14

Cited by 2 later decisions — most recently March 2008

2 state decisions

Relies on 864 So. 2d 512 - Woodson v. State · 871 So. 2d 1040 - Mitchell v. State · Davis v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2005-01-14

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¶1*566 James Marion Moorman, Public Defender, and Jack W. Shaw, Jr., Special Assistant Public Defender, Bartow, for Appellant.

¶2Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

¶3PER CURIAM.

¶4Edward 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.

¶5First, 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.

¶6In 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.

¶7Accordingly, we reverse the order of revocation and remand for the trial court to reinstate Gessner's probation.

¶8Reversed and remanded; conflict certified.

¶9CASANUEVA and STRINGER, JJ., and THREADGILL, EDWARD F., Senior Judge, concur.

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