FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-4089

_____________________________

ALFRED JAMES SCOTT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

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—
2

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.
3

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

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 fulltime at Michael’s (40+ hours weekly) and part-time at 

McDonald’s (20 hours weekly). He reapplied to Home Depot as 

well.
4

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 
5

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. 
6

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 
7

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.

_____________________________

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.