Bravo v. State, Case No. 2D17-1873

• Decision Date: 12 December 2018
• Docket Number: Case No. 2D17-1873
• Citation: 268 So.3d 193
• Parties: Maria BRAVO, DOC #H48590, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

268 So.3d 193

Maria BRAVO, DOC #H48590, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D17-1873

District Court of Appeal of Florida, Second District.

Opinion filed December 12, 2018

Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.

ROTHSTEIN-YOUAKIM, Judge.

Maria Bravo appeals from an order revoking her community control and the resulting sentence. Because the State failed to prove that she willfully and substantially violated condition 16 of her community control, we reverse.

Condition 16 required Bravo to remain confined to her approved residence except, among other circumstances not pertinent here, as approved by her community control officer (CCO). In the affidavit of violation of community control, Bravo's CCO alleged that on December 9, 2016, Bravo, without the CCO's permission, had failed to remain confined to her approved residence. Following an evidentiary hearing, the trial court found that she had willfully and substantially violated condition 16, revoked her community control, and sentenced her to three years in prison.

The testimony at the evidentiary hearing established the following:

The CCO first met Bravo on December 6, 2016, at Bravo's boyfriend's house. Bravo's boyfriend did not actually want Bravo to stay there, but Bravo had no other resources, had no significant family ties in Florida, and, for the time being, was unable to support herself because she was unemployed. Consequently, despite the CCO's concerns that the arrangement would not last, the boyfriend's house became Bravo's approved residence for community control purposes.

At 4:59 p.m. on December 9, 2016—three days later¹ —the CCO went to the boyfriend's house, and Bravo was not there. The boyfriend's mother told the CCO that Bravo and the boyfriend had had an argument and that Bravo had left. The CCO immediately called Bravo, who answered and told the CCO that she was on her way to her daughter's grandmother's home.² Bravo also told the CCO that she had tried calling the CCO's office, which closes for the day at 5:00 p.m., but had been unable to reach anyone.

At the hearing, Bravo testified that "things just got bad at home and I felt like me leaving would have been best for me." When asked to elaborate, she stated: "There was somebody else at the house and I didn't want—I didn't want anything to happen. I didn't want to get in trouble again so I left." When asked if she had meant to violate her community control, Bravo replied: "I didn't. I just thought by me staying it would make the situation worse." These statements suggest that her decision to leave had been neither premeditated nor particularly voluntary. When asked if she had tried to contact her CCO before leaving, she responded that she had "tried to get ahold of anyone in the [probation] office," but she could not remember what time she had called.

The CCO testified that if Bravo had called the office before 5:00 p.m., a duty officer would have been available to authorize her to leave her boyfriend's house. There was also some confusing testimony from both Bravo and the CCO that, taken as a whole, established that although Bravo had also been given an alternate number to call, she had only tried to call the office.

The trial court found as follows:

[A]s far as whether there was a better option I believe there was. And Ms. Bravo's testimony is that she was leaving for a better option - - that she was leaving to go to the grandmother of her child['s] residence. The problem becomes she did not get permission to leave [her boyfriend's house].

The record has been clear that she was at least given two numbers by her own ... testimony she was given a number specifically for the [CCO] which from the testimony seems to have been the cell phone number of the [CCO] as well as the office number for the probation office. So she had at least two numbers by her own testimony. And she did not get permission that's what this comes down to so I do find it's a willful, substantial and material violation which has been proven by a preponderance of the evidence ....

Thus, the trial court found that Bravo had willfully and substantially violated condition 16 because despite having at least two contact numbers in her possession, she had tried to call only one of them and had failed to obtain her CCO's approval before leaving her approved residence.

We review for an abuse of discretion the trial court's decision to revoke Bravo's community control. Filmore v. State, 133 So.3d 1188, 1193 (Fla. 2d DCA 2014) (citing Savage v. State, 120 So.3d 619, 623 (Fla. 2d DCA 2013) ). First, we must determine whether competent substantial evidence supports the trial court's finding of a willful and substantial violation of a condition of community control. Id. (citing Savage, 120 So.3d at 621 )...