Kotowski v. State , 344 So. 2d 602 ( 1977 )

344 So.2d 602 (1977)

John M. KOTOWSKI, Appellant,
v.
The STATE of Florida, Appellee.

No. 76-789.

District Court of Appeal of Florida, Third District.

April 5, 1977.

Bennett H. Brummer, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and David S. McLeod, Legal Intern, for appellee.

Before HENDRY, C.J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

The question posed by this appeal is whether the trial court abused its discretion by revoking defendant's probation and thereupon sentencing defendant to three years in the state prison.

In March, 1974, defendant was found guilty of uttering worthless checks and he was placed on probation for a period of five years. One of the conditions of defendant's probation was that he not change his residence without consent of his probation supervisor. In March, 1975, defendant was charged with and thereafter found guilty of violation of probation for failure to obtain the necessary consent of his supervisor prior to moving from his approved residence which he occupied in 1974. At the revocation of probation hearing, the uncontroverted evidence was that the defendant and his family were removed from their residence by a writ of possession issued in December, 1974, pursuant to a final judgment for removal of tenant obtained by the defendant's landlord.

We agree with the defendant's contention that his failure to obtain prior consent to change his residence was explained away in that to seek prior consent would have been a useless act. Cf. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947). While the record reflects that the defendant was not cooperative in notifying his supervisor before or after he moved, we find that the trial court abused its discretion in revoking defendant's probation for his failure to obtain the necessary consent prior to removing himself from his approved residence.

The order of revocation of probation and sentence are vacated and the defendant's probation is reinstated.

Reversed.