DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JENNIFER LAROSE MITCHELL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D18-855

[May 15, 2019]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. 

502016CF011451AXXXMB.

Carey Haughwout, Public Defender, and Christine C. Geraghty, 

Assistant Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven 

Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

In this appeal of an order revoking probation and imposing sentence, 

appellant contends that the court erred in finding a willful and substantial 

violation of various conditions, where the State failed to prove that she had 

the ability to comply with the conditions. She also argues that double 

jeopardy barred consideration of one violation because it had been the 

basis of a prior modification of probation. We agree that double jeopardy 

barred consideration of one violation. However, we conclude that the court 

did not err in finding that appellant had the ability to comply with the 

other conditions, but the State concedes that the order of violation 

contains two findings contrary to the oral findings of the court.

Appellant was adjudicated guilty of theft and placed on probation for 

one year. The order of probation included, among others, as conditions: 

1) no possession or consumption of alcohol and drugs; 2) completion of 

required seventy-five hours of community service at a rate of no less than 

ten hours a month; 3) four hours of theft abatement class; and 4) payment 

of costs and fees of supervision.
2

In July 2017, appellant’s probation officer randomly tested her for 

drugs, and she tested positive for marijuana. The officer recommended 

that, as a first-time offender, she enter the alternative sanctions program. 

She agreed. The Technical Violation Notification, which she signed, 

notified her that she was charged with violating condition seven of the 

order of probation by testing positive for marijuana. The probation officer

recommended that she complete a substance abuse evaluation and follow 

any treatment recommendations. By signing the form, she also 

acknowledged the rights that she was giving up. The court approved her 

entry into the program through an order, which found a violation of 

probation based upon her positive marijuana test, and modified her 

probation by ordering her to complete the sanction of substance abuse 

evaluation.1

A month prior to the expiration of appellant’s probationary term, the 

State filed an affidavit of violation alleging six violations:

Violation of Special Condition (1) of the Order of 

Probation, by failing to undergo a drug/alcohol evaluation, 

and as grounds for belief that the offender violated her 

probation, Officer Laura Fagley states that on September 5, 

2017, the offender was instructed to attend the evaluation at 

DAF, and as of December 11, 2017 the offender has not 

attended the evaluation, as told to Officer Laura Fagley by 

Diana Ebersol of DAF on December 8, 2017.

Violation of Condition (2) of the Order of Probation, by 

failing to pay the State of Florida the amount of $50.00 per 

month toward cost of supervision . . . .

Violation of Condition (7) of the Order of Probation, by 

using intoxicants to excess or possessing any drugs or 

narcotics, unless prescribed by a physician, and as ground for 

belief that the offender violated her probation, Officer Laura 

Fagley states that on or about June 14, 2017, the offender 

was in possession of a drug or narcotic not prescribed by a 

physician, to-wit: marijuana as shown by analysis of a urine 

sample obtained from the offender on July 5, 2017, and 

confirmed by the offender’s admission on July 5, 2017.

 

1 The Notice and Acceptance of the Alternative Sanction was not included in the 

record, even though it was clearly referred to at the hearing on the violation. This 

court ordered that the State file the form, and counsel did file a copy of the form, 

showing that it had been filed with the Clerk’s office. 
3

Violation of Condition (8) of the Order of Probation, by 

failing to successfully complete 75 hours of community 

service, at a rate of 10 hours per month . . . .

Violation of Condition (10) of the Order of Probation, by 

failing to make court costs payments to the probation officer 

as directed in accordance with the payment instructions of the 

court . . . .

Violation of Special Condition (28) of the Order of 

Probation, by failing to successfully complete a Theft 

Abatement Program and as grounds or belief that the offender 

violated her probation, Officer Laura Fagley states that the 

offender was instructed to attend the Theft Abatement 

Program at PRIDE, on March 16, 2017, and as of December 

8, 2017, the offender has failed to attend the program, as told 

to Officer Laura Fagley by Sandra Rizo of PRIDE on December 

11, 2017.

The court held a final VOP hearing. A case manager for the Drug Abuse 

Foundation, the entity responsible for substance abuse evaluations, 

testified that appellant had an appointment for a substance abuse 

evaluation scheduled at the DAF office in Belle Glade. To her knowledge,

appellant was never evaluated at DAF.

Appellant’s probation officer testified, over objection, that appellant had 

tested positive for marijuana in July 2017 and accepted the alternative 

sanction of modification of her probation. Defense objected that pursuant 

to statute, the admission to drug use by appellant in the alternative

sanction recommendation could not be used against her. Although the 

court agreed, it admitted the positive drug test, which formed the basis of 

the violation of probation in July.

With respect to the substance abuse violation, the officer testified that 

she instructed appellant to get the evaluation, which required a fortyeight-dollar fee. Appellant told her that she could not afford it. The 

evaluation was not performed, to the officer’s knowledge. She also recalled 

that later appellant did tell her that she had paid thirty dollars, but 

appellant did not have the remaining money to finish the evaluation.

As to the costs of supervision, the officer testified that appellant had 

not paid those, nor had she filled out paperwork to get the fees waived. 

While appellant told her that she had multiple sclerosis and had been 
4

hospitalized, the officer stated that she did not have anything showing that 

she was disabled.

Prior to the hearing, appellant had not provided her probation officer 

any verification that she had completed the required community service 

hours. However, at the hearing, appellant provided the officer with 

documentation that she had completed her community service.

Appellant had also been ordered to complete a theft abatement class. 

She told her officer that she did not have the money to take the course and 

could not get transportation. She requested to take the course online; 

however, the state attorney denied the request. She also told the officer 

that due to her medical condition she could not sit through a four-hour 

class. She did not provide documentation and had not completed the 

course.

Appellant testified on her own behalf, admitting to the use of marijuana,

which resulted in the alternative sanctions. She said that she paid thirty 

dollars to get the evaluation, but she did not have the remaining eighteen 

dollars to complete the payment. While she did start the evaluation, the 

evaluator would not send the report until the full amount was paid. She 

had not attended the theft abatement class because she could not get rides 

to West Palm Beach, where the course was held. In addition, she had a 

flare up of her medical issues and was hospitalized for a time in October 

2017. With respect to the requirement of the theft abatement class, she 

confirmed that she could not sit through a four-hour class and wanted to 

take it online. Her medical records, confirming her condition, were

admitted in evidence. She had been fired from her job much earlier 

because of her medical issues, and she was still awaiting a determination 

that she qualified for social security disability payments.

The court found that appellant willfully and substantially violated her 

probation. She violated special condition one because she failed to 

undergo the drug and alcohol evaluation. The court did not find that her 

finances prevented her from coming up with the additional eighteen dollars

for the evaluation. Instead, the court decided that even without the 

additional payment of money, the drug evaluation could have taken place. 

The court also found that she violated condition seven of her probation 

based on her admission that she used marijuana. And, if the admission 

was not legally permitted to be considered, it found that the tests that 

Officer Fagley performed showed appellant had THC in her system as a 

result of marijuana use. Next, the court found a violation of condition 

eight because she failed to provide proof of service of community service. 

It determined that her testimony as to her completion of this requirement 
5

was not credible. Finally, the court found a violation of special condition 

twenty-eight because appellant failed to complete the Theft Abatement 

Class, concluding that she had the ability to enroll in that class and 

complete it.

The court found her guilty of the violation of probation, terminated her 

probation, adjudicated her guilty of petit theft for which she had been on 

probation, and sentenced her to four months in the county jail. Appellant 

filed a notice of appeal. She subsequently filed a Florida Rule of Criminal 

Procedure 3.800(b)(2) motion to correct sentencing error on grounds that 

the court must file a written order revoking probation. The court 

responded by filing a written Order of Revocation of Probation, which 

contained the violations listed above and an additional violation of 

condition ten (failing to pay the court costs payments). The court had 

orally found that violations of conditions two and ten were not willful 

because Mitchell did not have the ability to pay.

We first consider appellant’s double jeopardy claim. The standard of 

review in deciding whether double jeopardy is violated is de novo. State v. 

Losada, 175 So. 3d 911, 912 (Fla. 4th DCA 2015). The Double Jeopardy 

clause of the United States and Florida Constitutions provides protection 

from multiple prosecutions in three ways:

Both the United States Constitution and the Florida 

Constitution guarantee that no individual will be put in 

jeopardy more than once for the same offense. The guarantee 

against double jeopardy consists of three separate 

constitutional protections: “It protects against a second 

prosecution for the same offense after acquittal. It protects 

against a second prosecution for the same offense after 

conviction. And it protects against multiple punishments for 

the same offense.” North Carolina v. Pearce, 395 U.S. 711, 

717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969) (footnotes 

omitted) (emphasis added).

Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994) (footnotes omitted). 

In Lippman, the court determined that a modification of probation where 

the court found that no violation had occurred constituted an 

enhancement of the sentence, violating the protection against multiple 

punishments for the same offense. “Thus, the double jeopardy protection 

against multiple punishments includes the protection against 

enhancements or extensions of the conditions of probation.” Id. 

Furthermore, “[t]he prohibition against double jeopardy is ‘fundamental.’” 

Id. (quoting Benton v. Maryland, 395 U.S. 784, 795-96, 89 S. Ct. 2056, 23 
6

L. Ed. 2d 707 (1969)). Thus, the failure to raise a double jeopardy claim 

in a direct appeal from the modification order does not waive that claim.

Id.

Appellant contends that double jeopardy prevented the court from 

finding her in violation of both special condition one, failure to obtain a 

substance abuse evaluation, and condition seven, testing positive for 

marijuana. Appellant had been charged with violating condition seven

through the positive drug test and her admission of using marijuana. That 

violation led to the modification of her probation and imposition of special 

condition one, requiring her to obtain a substance abuse evaluation and 

abide by any treatment recommendations. This was an enhancement of 

her original sentence, as it added additional terms of probation, the 

violation of which could subject her to revocation of probation and 

imposition of an increased sentence. Since her probationary sentence had 

already been enhanced for the same violation of this condition, a second 

enhancement or punishment based upon the same violation would impose 

multiple punishments for the same offense.

We recognize that Scott v. State, 937 So. 2d 746 (Fla. 4th DCA 2006),

states that double jeopardy does not apply to probation violation hearings, 

but that case is distinguishable. There, a violation of probation was 

dismissed because the officer failed to appear at the hearing. Id. at 748. 

A second violation was filed based upon the exact same incident, and the 

defendant sought a writ of prohibition. Id. We held that, “The Double 

Jeopardy Clause does not bar a second probation violation proceeding for 

the same alleged violation, wherein the subject of the earlier proceeding 

was dismissed by the court without any testimony being taken or evidence 

offered.” Id. None of the cases cited in Scott for the proposition that the 

Double Jeopardy Clause does not apply to probation proceedings involved 

a case where a violation of probation was dismissed or granted after an 

evidentiary hearing. Furthermore, according to Lippman, the Double 

Jeopardy Clause does apply to the enhancement of probation conditions. 

Thus, in some circumstances, the clause is applicable.

Therefore, having previously found a violation of appellant’s probation 

based upon the identical violation of condition seven, and having imposed 

enhanced probation conditions as a result, the court could not again 

increase the sentence based upon that same violation. We thus reverse 

the finding of violation based upon the violation of condition seven.

Appellant claims that the court also erred in finding a willful violation 

of condition one and condition twenty-eight, where both provisions 

required the payment of fees which appellant did not have the means to 
7

pay. Revocation of probation based on an inability to pay for conditions of 

probation is fundamental error. Del Valle v. State, 80 So. 3d 999, 1004 

(Fla. 2011). However, a trial court’s finding of a willful and substantial 

violation of probation is reviewed for competent substantial evidence, and 

the trial court’s decision to revoke probation is reviewed for abuse of 

discretion. Davis v. State, 945 So. 2d 607, 608 (Fla. 4th DCA 2006).

Unlike Del Valle, which involved the payment of restitution and court 

costs, the requirements of conditions one and twenty-eight were not 

monetary obligations. They required appellant to obtain an evaluation and 

to attend a class, with nominal fees required. With respect to the failure 

to have the substance abuse evaluation, the court determined that she 

willfully violated that requirement. The court discounted her inability to 

pay the eighteen dollars remaining for the evaluation after having paid

thirty dollars. A close reading of her testimony shows that she never 

testified that she could not pay the money, merely that she did not have 

the eighteen dollars when she went to have the evaluation. She testified 

that the evaluator told her to bring in the remaining eighteen dollars to 

complete the evaluation, but she was hospitalized at the time of her second 

appointment and then failed to make any effort to complete this task over 

the then-remaining four months of her probation. As to condition twentyeight, the requirement that she attend the theft abatement class, her main 

complaint during her testimony was her inability to get to the class in West 

Palm Beach and that she could not sit for four hours due to her medical 

condition. In her testimony, she never asserted that financial inability was 

the reason she could not take the class. Furthermore, there was no 

evidence presented that there was a fee to attend that class. While there 

was scant evidence regarding her ability to pay, she did testify that she 

was paying people for transportation until she obtained a bus pass due to 

disability, thus revealing that she had some money to spend. Based upon 

the totality of the evidence, and the court’s credibility determinations, the 

court did not abuse its discretion in finding a willful violation of these 

provisions.

The State concedes, however, that the court erred in finding a violation 

of conditions two and ten in its order of revocation of probation, as the 

court orally found that those violations were not willful. On remand, those 

findings should be stricken from the order of probation.

In conclusion, the court erred by finding a violation of condition seven, 

but it did not abuse its discretion in finding violations of conditions one,

twenty-eight, and eight (regarding community service hours). The court 

did not find any willful violation of the other conditions. Because the 

violation of condition seven appears to have figured so prominently in the 
8

court’s determination, we reverse and remand for the court to reconsider 

the revocation and sentence. 

GROSS and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.