County Criminal Court: CRIMINAL LAW – Probation – Evidence sufficient to justify order revoking probation where evidence showed defendant violated his business-purposes-only driver’s license by driving to go fishing. Order revoking probation affirmed. Fisher v. State, No. CRC 06-47 APANO, (Fla. 6th Cir. App. Ct. June 25, 2007).

 

 

 

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

 

 

 

JOHN WOOD FISHER

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 06-47 APANO

                                                                        UCN522006AP0047XXXXCR

 

STATE OF FLORIDA

 

            Appellee.

______________________________/

 

 

Opinion filed ___________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge Thomas B. Freeman

 

Alexis M. Wert, Esquire

Attorney for the appellant

 

Justin S. Peterson, Esquire

Assistant State Attorney

 

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on the defendant, John Fisher’s, appeal from an order of the Pinellas County Court revoking his probation. After reviewing the briefs and record, this Court affirms the decision of the trial court.

            The appellant argues that there was insufficient evidence to show that he violated his probation by driving a motor vehicle in violation of the restriction placed upon his driving. The standard of review on this matter is whether or not the trial court abused its discretion. Stevens v. State, 823 So.2d 319 (Fla. 2d DCA 2002). To prevail at the probation revocation hearing, the State needed to prove by a preponderance of the evidence that the defendant willfully violated his driving restriction. Id. A review of the record reveals ample proof that the defendant was operating a motor vehicle in order to go fishing --- a clear violation of his business-purposes-only driving privilege.

            A deputy was dispatched to the scene of an inoperable motor vehicle. The vehicle had run out of gas. The defendant told the deputy that it was his motor vehicle. During the course of the twenty to twenty-five minute conversation, the defendant told the deputy that he was going fishing.  The deputy observed fishing poles and a cooler in the vehicle. The defendant appeared upset, and told the deputy that his wife had previously driven the vehicle and had used up all of the gas; that left him at least an hour late for his fishing trip. A community service officer for the Highway Patrol drove the defendant to the defendant’s house to get a gas can. While the defendant was gone, the deputy ran a records check on the tag number of the vehicle. He found out who the registered owner of the vehicle was, and from a picture on the registered owner’s driver’s license he recognized that the defendant was the registered owner. The deputy also discovered that the defendant’s driver’s license was suspended for DUI, and that the defendant had a business - purposes – only restricted license. When the defendant returned, the deputy asked why he was driving. The defendant then changed his story about going fishing, and told the deputy that he was going to show his boat because he was going to sell it.

            This evidence is sufficient to support the decision of the trial court. The trier of fact was entitled to resolve any conflicts in the evidence. Accordingly, the order revoking the defendant’s probation must be affirmed.

            IT IS THEREFORE ORDERED that the order revoking probation is affirmed.  DONE AND ORDERED in Clearwater, Florida this _____ day of June, 2007.

 

 

 

                                                                        ______________________________

                                                                                          Linda R. Allan

                                                                                       Circuit Court Judge

 

 

 

                                                                        ________________________________

                                                                                          R. Timothy Peters 

                                                                                         Circuit Court Judge

 

 

 

                                                                        _________________________________

                                                                                             John A. Schaefer

                                                                                            Circuit Court Judge

 

cc:        Office of the State Attorney

 

            Alexis M. Wert, Esquire

 

            Honorable Thomas B. Freeman