         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-4089
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ALFRED JAMES SCOTT,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.

                        August 10, 2018


PER CURIAM.

     Alfred James Scott appeals the trial court’s order modifying
his probation. Because the State failed to prove that Scott
willfully violated a substantial condition of his probation, we
reverse.

     Scott entered an open plea of guilty to one count of selling
marijuana. Since he had no prior record, the trial court withheld
adjudication of guilt and imposed twenty-one months’ probation
and a ninety-day jail sentence, which the court suspended based
on Scott’s assurances that he had secured a job at Home Depot. A
few months later, the State filed an affidavit alleging Scott
violated probation by failing to obtain employment with Home
Depot. It was undisputed that Scott had obtained employment—
in fact, he had two jobs totaling sixty hours per week—but he did
not get the job at Home Depot. As a result, the court concluded
that Scott willfully and substantially violated his probation, and
it modified his probation to impose the jail time.

     Scott argues the trial court erred in finding a willful and
substantial violation of probation based on a condition not
imposed by the trial court. We agree. The transcript of the
original sentencing hearing reflects a discussion regarding
employment at Home Depot, but the actual condition of probation
imposed by the court was that Scott obtain a full-time job or show
good faith efforts to do so. Specifically, the court explained,

    And if he doesn’t get a job [at Home Depot], in addition
    to the 90 days – well, the condition of probation is he
    gets a job, full-time job, or show at least five applications
    per week until he gets a job.

     The written probation order is consistent with the court’s
oral pronouncement. Indeed, the State concedes that the court
did not impose employment at Home Depot as a condition of
probation, instead arguing it was a “separate agreement” that
governed Scott’s suspended sentence. However, the “language
used in a condition of probation is determinative of a
probationer’s duties and responsibilities while on probation.”
Odom v. State, 15 So. 3d 672, 677 (Fla. 1st DCA 2009) (quoting
Stanley v. State, 922 So. 2d 411, 414 (Fla. 5th DCA 2006)).
Because the State’s evidence did not show that Scott failed to
obtain a full-time job, the court erred in finding a willful and
substantial violation of probation.

    REVERSED and REMANDED.

ROWE and RAY, JJ., concur; MAKAR, J., concurring in result with
opinion.




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                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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MAKAR, J., concurring in result with opinion.

     Thirty-two-year-old Alfred James Scott, who had no prior
criminal record, pled guilty to one count of selling marijuana. At
the sentencing hearing, the trial judge imposed a ninety-day
suspended sentence with twenty-one months of probation
thereafter. The suspended sentence was conditioned on Scott
getting a job at Home Depot, which Scott said he had lined up. In
his oral pronouncement, however, the trial judge was unclear as
to whether this condition applied to the suspended sentence or,
more generally, was a condition of probation, saying “well, the
condition of probation is he gets a job, full-time job, or show at
least five applications per week until he gets a job.” Confusion
resulted in an “Order on Probation,” signed by the trial judge,
stating verbatim what he had required as to full-time work and
job applications without mention of the Home Depot job.

     Two months later, the Department filed a violation report,
stating as grounds that Scott did not get the job at Home Depot.
At the revocation hearing, Scott’s probation officer testified that
“[h]e’s been complying with everything I asked him to do.” She
confirmed that he obtained full-time employment, but that “[h]e
did not get the Home Depot job.” She explained that she “got a
letter stating why he didn’t get it, I'm assuming because of his
background he didn’t get the job. He was offered the job but as
his background came they didn’t—they rescinded the offer.” Scott
testified, confirming that he’d received an offer of employment,
but that it was revoked when Home Depot learned he was on
probation. He then sought other employment and was hired full-
time at Michael’s (40+ hours weekly) and part-time at
McDonald’s (20 hours weekly). He reapplied to Home Depot as
well.


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     On this record, Scott’s counsel argued that no willful
violation occurred: Scott had received an offer from Home Depot,
which was withdrawn due to his probationary status, a matter
over which Scott had no control, and Scott mitigated the setback
by getting two jobs totaling more than full-time employment. The
trial judge, however, concluded that Scott engaged in a willful
and substantial violation because “he had guaranteed me he had
[the Home Depot job] . . . which turned out to be not true.” The
trial judge expressed confusion as to why there was a need for a
probation revocation hearing because the “suspended sentence
[was] based on getting the job at Home Depot” and was not a
condition of probation. The hearing concluded with the trial judge
saying, “[t]hat will teach me a lesson. Just do what I should have
done in the first place,” i.e., to incarcerate Scott without the
employment-at-Home Depot condition.

      On appeal, Scott asserts that the trial court erred in
concluding that his failure to secure the Home Depot job was a
substantial and willful violation of the conditions placed upon
him. He also argues that the condition that he work full-time is
fundamental error, citing caselaw finding such a condition
invalid. See White v. State, 619 So. 2d 429, 431 (Fla. 1st DCA
1993) (holding that “a probationer cannot be ordered to maintain
full-time employment and that imposition of such a requirement
is sufficiently egregious to constitute fundamental error.”); see
also Aviles v. State, 165 So. 3d 841, 843 (Fla. 1st DCA 2015)
(holding that “it is improper to require a probationer, without
exception, to maintain full-time employment as a condition of
probation because factors out of the probationer’s control could
prevent completion of this requirement. . . . A probationer can be
ordered to either maintain full-time employment or provide proof
of job searches”) (citations omitted).

     Taking the latter issue first, Scott assured the trial judge
that he had the Home Depot job and willingly accepted the
employment condition to avoid incarceration. He did not object to
the condition and, instead, embraced it, thereby waiving his
ability to assert fundamental error on appeal as to the condition’s
validity. Universal Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47, 65
(Fla. 2012). That he’s waived the right to seek invalidation of the
Home Depot condition in its entirety, however, does not mean he

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waived all other errors, including the basic requirement that a
willful and substantial violation of the condition must be proven.
Because he acceded to the condition of Home Depot employment,
appellate review is limited to whether the trial court’s finding
that Scott violated that condition meets applicable standards.

     Turning to this second issue, the appellate standard of
review of the trial court’s order is for an abuse of
discretion. Aviles, 165 So. 3d at 842; see also Brill v. State, 32 So.
2d 607, 609 (Fla. 1947) (revocation of a suspended sentence
subject to whether trial court abused its discretion). Stated
differently, an “appellate court must determine whether or not
the trial court acted in an arbitrary, fanciful or unreasonable
manner in determining that [the probationer’s] violation was
both willful and substantial.” Friddle v. State, 989 So. 2d 1254,
1255 (Fla. 1st DCA 2008) (citing State v. Carter, 835 So. 2d 259,
262 (Fla. 2002)).

     Here, the panel concludes that Home Depot employment was
not a condition of probation, but the trial court unequivocally said
that it was a condition of the suspended sentence, making it
unclear whether the oral or written pronouncement controls, a
point upon which this district is somewhat indeterminate.
Compare Odom v. State, 15 So. 3d 672, 677 (Fla. 1st DCA 2009)
(stating that “‘the language used in a condition of probation is
determinative of a probationer’s duties and responsibilities while
on probation.’”) (quoting Stanley v. State, 922 So. 2d 411, 414
(Fla. 5th DCA 2006)), with Rowland v. State, 548 So. 2d 812, 814
(Fla. 1st DCA 1989) (“A trial court’s oral pronouncement controls
over its written order.”). The trial court was adamant that the
condition at issue was placed on Scott’s suspended sentence and
not a condition of probation, saying: “Technically I guess I’ll find
that it is a willful violation, substantial violation of his probation,
despite the fact we shouldn’t even be here because it was a
suspended sentence based on getting the job at Home Depot.”

     Regardless of whether the Home Depot condition was placed
on Scott’s suspended sentence (as the trial judge believed) or was
a condition of probation (though not mentioned in the probation
order), the same standard of appellate review applies: whether
the trial court’s decision was an abuse of discretion. Brill, 32 So.

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2d at 609; Aviles, 165 So. 3d at 842. Either way, that standard is
met in this case: it was an abuse of discretion on this record to
find Scott’s failure to get the Home Depot job as both willful and
substantial.

      First, it wasn’t willful because “[r]easonable efforts to comply
with a condition of probation cannot be deemed a willful
violation.” Aviles, 165 So. 3d at 842. Scott did all he could to
secure the Home Depot job, and when it fell through, he sensibly
undertook efforts in applying for and obtaining full-time
employment at Michael’s and part-time employment at
McDonald’s, exceeding the workweek the Home Depot job offered.
Such efforts are commendable and show initiative; they are the
converse of willful avoidance of an employment condition. And
jailing Scott short-circuited his two jobs, as well as his future
employment prospects.

    In addition, Scott was forthright with the trial judge about
the Home Depot position, making clear at sentencing that he had
the job in hand subject to the employer’s receipt of papers
showing the disposition of his case:

    THE COURT: What is the status of this Home Depot?
    THE DEFENDANT: They are waiting – they are waiting
    on my disposition papers. I'm going to fax it to them and
    once that clears, that I will be hired.
    THE COURT: So you think if I don’t put you in jail, you
    will get that job?
    THE DEFENDANT: I know it for a fact, sir.

(Emphasis added). The trial judge was told that the Home Depot
job was conditioned on the disposition papers, making it clear
that Scott’s exuberance was likewise conditioned on this
contingency. To conclude that Scott had “guaranteed”
employment at Home Depot, when the employer’s final decision
hinged on the disposition papers, was unjustified, particularly
given the recognized principle that probation cannot be revoked
based on matters over which the probationer has no control.
Aviles, 165 So. 3d at 843; see also Winfield v. State, 406 So. 2d 50,
52 (Fla. 1st DCA 1981) (“State must show that failure to
maintain or acquire employment was willful and not caused by

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circumstances beyond the probationer’s control.”). The probation
officer confirmed what happened, that Scott did everything
required of him, but that Home Depot reneged upon receipt of the
papers showing Scott’s status, a decision beyond Scott’s control.
To the extent the trial judge felt that Scott hadn’t told the truth
about the status of the Home Depot job, the transcript contradicts
such a conclusion.

      Second, it wasn’t a substantial violation of the Home Depot
employment condition. Had Scott gotten a full-time job at Lowe’s,
rather than Home Depot, it would not be a substantial
violation—let alone a material one, under the circumstances. See,
e.g., § 948.06(1)(a), Fla. Stat. (2018) (requiring “reasonable
grounds to believe that a probationer . . . has violated his
probation . . . in a material respect”); Smith v. State, 68 So. 3d
968, 969 (Fla. 1st DCA 2011) (“[S]light delay in appearing at the
jail on the day he was to begin serving that term of incarceration
was not shown to be a willful and substantial violation . . . .”).
That Scott gained employment at two jobs (one full-time with a
national arts and crafts chain and one part-time with an
international fast-food chain) is equally immaterial. Nothing in
the record suggests that full-time employment with a home
improvement supply company matters, particularly where the
general probationary requirement was simply having a full-time
job, which Scott exceeded. As such, it was an abuse of discretion
to incarcerate Scott, who had no criminal record and had far
surpassed what was required of him as to securing full-time
employment.

    For these reasons, reversal in this case is appropriate
whether employment at Home Depot was a condition of Scott’s
suspended sentence or was (or was not) a condition of probation.

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Andy Thomas, Public Defender, and Joel Arnold, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.

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