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remanding for the trial court to consider "whether it would have revoked the appellant's probation and imposed the same sentences in the absence of a violation of condition six"
Summary of this case from Smith v. StateOpinion
Nos. 1D18-1355 1D18-1357
01-21-2020
Jacob Omar HILL, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
Roberts, J. The appellant challenges the trial court's decision to revoke his probation. First, the appellant argues that the trial court erred by revoking his probation for violating condition six. Second, he argues that the State failed to present evidence that the appellant was the person on probation and that he was advised about the conditions of his probation. We only find merit in the first issue. We affirm as to the second issue without comment.
We review a trial court's factual finding that the State proved by a greater weight of the evidence that a violation of probation occurred under the competent, substantial evidence standard. Rodgers v. State , 171 So. 3d 236, 238 (Fla. 1st DCA 2015). If there is a question about whether the proven conduct legally constitutes a violation of probation, then the trial court's legal decision is subject to de novo review. Staples v. State , 202 So. 3d 28, 32 (Fla. 2016) (holding that the question of whether a refusal to admit sexual misconduct was a violation of probation was a legal determination subject to de novo review). Finally, the trial court's ultimate decision of whether the violation was willful and substantial is reviewed for an abuse of discretion. Id.
Condition six of the appellant's probation required him to not associate with any person engaged in criminal activity. In the affidavit alleging that the appellant had violated this condition, the probation officer alleged that the appellant was engaged in criminal activity at a particular residence. This allegation does not support a violation of condition six. See Wells v. State , 60 So. 3d 551, 553 (Fla. 1st DCA 2011) (finding allegation contained in the affidavit for violation of probation that the defendant was seen holding a baby was not sufficient to find the defendant violated the condition that he was not to have unsupervised contact with children); Little v. State , 143 So. 3d 465, 468 (Fla. 5th DCA 2014) (reversing probation revocation for purchasing/possessing pseudoephedrine when the condition prohibited the probationer from taking medication containing pseudoephedrine). Because the affidavit did not allege conduct that constituted a violation of condition six, the trial court erred in finding that the appellant violated that condition.
The trial court also found that the appellant violated conditions four and five of his probation. We affirm the appellant's revocation of probation on those grounds as each violation is substantial. See Blake v. State , 21 So. 3d 129, 131 n.2 (Fla. 3d DCA 2009) (finding that the defendant's probation could have been revoked for either the new law violation or possession of a firearm). We also find that there was competent, substantial evidence to support the finding that the appellant violated those conditions.
Even though we find that the trial court did not err in revoking the appellant's probation, we must reverse because the trial court's brief statements do not allow this Court to determine whether it would have revoked the appellant's probation and imposed the same sentences in the absence of a violation of condition six. See Malone v. State , 146 So. 3d 155, 158 (Fla. 1st DCA 2014) ("When some grounds of probation violation are upheld and others are invalidated, the proper course of action is to reverse the order revoking probation and remand for reconsideration, unless the record clearly demonstrates that the trial court would have revoked probation based only on the upheld revocation grounds.") Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.
Wolf and Jay, JJ., concur.