County Criminal Court: CRIMINAL LAW Ė Probation --- Condition of probation requiring defendant who was an illegal resident to use best efforts to obtain driverís license did not require defendant to obtain a Mexican driverís license, and evidence showed defendantís minimal attempts at getting a licensewere his best efforts because DMV would not give driverís license to illegal resident. Order revoking probation reversed. Oriano v. State, No. CRC 07-35 APANO, (Fla. 6th Cir. App. Ct. Feb. 25, 2008).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

RAFAEL ORIANO

 

††††††††††† Appellant,

Appeal No. CRC 07-35 APANO

UCN522007AP000035XXXXCR

v.

 

STATE OF FLORIDA

 

††††††††††† Appellee.

_________________________________/

 

Opinion filed ______________________.

 

Appeal from an order entered

by the Pinellas County Court

County Judge Thomas B. Freeman

 

Melissa Loesch, Esquire

Attorney for appellant

 

Carolyne Moomaw, Esquire

Assistant State Attorney

ORDER AND OPINION

 

††††††††††† (J. Demers)

 

††††††††††† THIS MATTER is before the Court on the defendant, Rafael Orianoís, appeal from an order revoking his probation and imposing a jail sentence. After reviewing the briefs and record, this Court reverses the order and sentence.

††††††††††† Oriano is a citizen of Mexico and illegally resides here in Florida. He was convicted of driving without a valid driverís license and placed on probation. As part of his probation he was ordered to ďuse best efforts to obtain Driverís License.Ē Shortly before the end of his probation, Orianoís probation officer filed an affidavit of noncompliance, claiming he had failed to use his best efforts to obtain a driverís license. An evidentiary hearing was held and Oriano told the trial court that his girlfriend had gone to the Department of Motor Vehicles (ďDMVĒ) to find out what he could do to get a driverís license. It turned out that he was unable to obtain a driverís license in Florida because he was not a legal resident. Oriano had contacted an immigration attorney to try and obtain a driverís license, but the attorney was unable to help. In addition, Oriano said his attorney was trying to get him legal residency here in Florida, but the process would take much longer than the six month probationary term. The trial court, however, found Oriano failed to use his best efforts to obtain a driverís license; reasoning in part that he could have obtained a Mexican driverís license.

††††††††††† This Court cannot agree with the trial courtís interpretation of the condition of probation. No reasonable probationer would believe that the condition required him to obtain a Mexican driverís license. The only reasonable interpretation of the condition is that the probationer must do his best to obtain a Florida driverís license. The fact that the probationer failed to obtain a Mexican driverís license does not justify a finding that he willfully violated his probation.

††††††††††† In addition, to justify a revocation of probation there must be evidence that the violation was willful and substantial. Hightower v. State, 529 So.2d 726 (Fla. 2d DCA 1988). There was no such evidence in this case. The probationer was not on notice that he had to obtain a Mexican license to fulfill the condition. Therefore, to the extent there was any failure to meet the condition by not getting a Mexican license, it was not willful.

††††††††††† This Court does not find the Stateís argument that Oriano failed to use his best efforts to obtain a driverís license persuasive. This Court has interpreted the condition as a requirement that the probationer use his best efforts to get a Florida driverís license. That is what the probationer did. Although his efforts consisted of sending his girlfriend to inquire about the procedure at the DMV and contacting an immigration attorney, they were sufficient to find out that he was facing an impossible task. Short of gaining proof of legal residency (see ß322.08(2)(c), Fla. Stat. (2007), which could not be done before his probationary term ended, there was no way that the DMV was going to give Oriano a driverís license --- no matter how hard he tried. One trip, ten trips, a hundred trips to the DMV would not change this. It is not reasonable to find that a probationerís decision not to repeatedly make futile attempts is a failure of the probationer to use his best efforts. The law does not require a futile act. Hoshaw v. State, 533 So.2d 886 (Fla. 3d DCA 1988). Under these circumstances, Oriano did not violate his probation.†††††

††††††††††† IT IS THEREFORE ORDERED that the order revoking probation and imposing a jail sentence is reversed.

††††††††††† DONE AND ORDERED in Clearwater, Pinellas County, Florida this ____ day of February, 2008.

 

____________________________††† ††††††††† ____________________________

††††††††††† Joseph A. Bulone††††††††††† ††††††††††††††††††††††††††††† David A. Demers

††††††††††† Circuit Judge††††††††††††††††††††††††††††††††††††† †††††††††† Circuit Judge

†††††††††††

†††††††††††††††††††††††††††††††††††††††††††††††

 

††††††††††††††††††††††††††††††††††† ____________________________

††††††††††† ††††††††††††††††††††††††††††††††††† Cynthia J. Newton

††††††††††††††††††††††† ††††††††††††††††††††††† Circuit Judge

cc:†† Office of the State Attorney

††††††† Melissa Loesch, Esquire

††††††† Honorable Thomas B. Freeman

††