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

REYNALDO ANTONIO                      NOT FINAL UNTIL TIME EXPIRES TO
AVILES,                               FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED
      Appellant,
                                      CASE NO. 1D14-2542
v.

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed June 8, 2015.

An appeal from the Circuit Court for Bradford County.
Robert Groeb, Judge.

Nancy A. Daniels, Public Defender, and Zachary Lawton, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jessica DaSilva, Assistant Attorney
General, Tallahassee, for Appellee.




BILBREY, J.

      Following his entry of a negotiated plea and sentence for selling or

dispensing drugs without a prescription, appellant was placed on probation.    On

March 3, 2014, an affidavit of violation of probation was filed charging violations
of three general conditions of probation and of two special conditions. A contested

hearing was held on the alleged violations. At the conclusion of the hearing, the

trial court found appellant had violated general conditions 3, 8, and 10 and special

conditions 2 and 3 of his probation. Based on the violations, the trial court revoked

appellant’s probation and sentenced him to five years of imprisonment, with credit,

for the underlying offense. A written order followed; however, the written order

did not conform to the trial court’s oral pronouncement, in that the written order

provides that appellant “violated conditions 9, 22 and 28, of the Order of Probation

and Community Control.” The appellant then filed an appeal of the order revoking

probation.

      An order revoking probation is reviewed for an abuse of discretion. State v.

Carter, 835 So. 2d 259 (Fla. 2002). But, to permit revocation of probation, a

violation must be willful and substantial. Odom v. State, 15 So. 3d 672 (Fla. 1st

DCA 2009); Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013). Reasonable

efforts to comply with a condition of probation cannot be deemed a willful

violation. Odom. Furthermore, a written order revoking probation must conform

to the trial court's oral pronouncement. Crews v. State, 128 So. 3d 983 (Fla. 1st

DCA 2014); Fletcher v. State, 149 So. 3d 147 (Fla. 4th DCA 2014).

      Appellant raises three challenges to the revocation of probation. He first

argues that the trial court erred in basing revocation, in part, on his failure to

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maintain full-time employment. The Appellant is correct 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. See Miller v. State, 691 So. 2d 26 (Fla. 1st

DCA 1997); Delacruz v. State, 687 So. 2d 66 (Fla. 1st DCA 1997); White v. State,

619 So. 2d 429 (Fla. 1st DCA 1993); Reed v. State, 865 So. 2d 644 (Fla. 2d DCA

2004). A probationer can be ordered to either maintain full-time employment or

provide proof of job searches. Evans v. State, 608 So. 2d 90 (Fla. 1st DCA 1992);

Miller.   But without providing an unemployed probationer the reasonable

opportunity to secure employment, the trial court created an invalid condition of

probation. Probation cannot be revoked or its terms modified for violating an

invalid condition. White, 619 So. 2d at 431; Odom.

      In revoking probation, the trial court also noted that appellant failed to

submit job search logs, as ordered by his probation officer. However, failure to

comply with this instruction is not a proper basis for revocation. The trial court did

not impose such a condition on appellant when he was sentenced to probation, and

a probation officer has no authority to impose additional conditions of probation,

even if the court has ordered the probationer to follow all instructions the officer

may give. Paterson v. State, 612 So. 2d 692 (Fla. 1st DCA 1993); Bishop v. State,

21 So. 3d 830 (Fla. 1st DCA 2008).

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      Appellant’s second issue is that the trial court erred in finding appellant

violated several conditions of probation by not paying court costs, restitution, and

drug testing costs because the trial court did not also find appellant had an ability

to pay these costs. Appellant is correct on this issue. In Del Valle v. State, 80 So.

3d 999, 1012 (Fla. 2011), the Florida Supreme Court stated, “In probation

revocation proceedings for failure to pay a monetary obligation as a condition of

probation, the trial court must find that the defendant's failure to pay was willful—

i.e., the defendant has, or has had, the ability to pay the obligation and purposefully

did not do so.”

      The State again argues that this issue has not been preserved for appellate

consideration, but revocation of probation for a failure to pay costs without the

requisite finding as to ability to pay is fundamental error. Id. at 1004; Smith v.

State, 49 So. 3d 833, 834 (Fla. 1st DCA 2010); Odom, 15 So. 3d at 678-79.

      Appellant’s third issue in this appeal is the trial court’s finding that appellant

changed his residence without the consent of his probation officer. This finding by

the trial court is adequately supported by competent, substantial evidence, and

therefore, we do not disturb that finding. While there was some hearsay testimony

adduced by the State, revocation on this ground was not predicated solely on such

testimony. See Carter v. State, 82 So. 3d 993, 994–95 (Fla. 1st DCA 2011)




                                          4
(“Hearsay is admissible at a probation revocation hearing to supplement or explain

other, competent evidence, but hearsay alone will not support revocation.”).

      Because we are unable to determine from the record on appeal whether the

trial court would have revoked appellant’s probation or imposed the same sentence

on the sole ground that appellant impermissibly changed his residence, we remand

the cause to the trial court to reconsider the revocation and sentence imposed.

Further, should the trial court again revoke probation following remand, the

written order should find a violation of general condition 3, and not conditions 9,

22, or 28.

      AFFIRMED in part, REVERSED in part and REMANDED.

THOMAS and MARSTILLER, JJ., CONCUR.




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