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

JAMES ARLIE TYSON,                    NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D13-5642

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed January 6, 2015.

An appeal from the Circuit Court for Madison County.
Andrew J. Decker, I I I, Judge.

Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Chester Harris and David
Campbell, Assistant Attorneys General, Tallahassee, for Appellee.




PER CURIAM.

      The order modifying and extending the appellant’s probation is reversed.

See Van Wagner v. State, 677 So.2d 314 (Fla. 1st DCA 1996). Because the prior

probationary term was set to expire on November 9, 2013, 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




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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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