Bright v. State

• Decision Date: 04 November 2022
• Docket Number: 2D21-2172
• Citation: 350 So.3d 435
• Parties: Jason Baruch BRIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

350 So.3d 435

Jason Baruch BRIGHT, Appellant,

v.STATE of Florida, Appellee.

No. 2D21-2172

District Court of Appeal of Florida, Second District.

November 4, 2022

Robert P. Harris of Robert Harris Law Firm, Fort Myers, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa; and Natalia Reyna-Pimiento, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.

ROTHSTEIN-YOUAKIM, Judge.

Jason Bright appeals from the order revoking his probation. For the reasons set forth below, we reverse the order of revocation and remand for the trial court to reconsider whether it would have revoked Bright's probation based solely on the violations of conditions 1, 3, and 22.

In 2007, Bright pled no contest to sexual battery (familial authority). After completing his prison sentence, he began serving his term of sex offender probation. In 2018, the trial court found that Bright had repeatedly violated the condition of probation concerning electronic monitoring. Although sentencing Bright to thirty-one days in jail for those violations, the court did not revoke his probation.

In 2021, Bright's probation officer filed another violation affidavit, alleging that Bright had violated the following conditions: condition 1, by failing to report that he had received a traffic citation in April 2019; condition 3, by crossing into Collier County from Lee County in June 2020 without his probation officer's approval; condition 10, "by failing to make court costs and electronic monitoring payments to the probation officer in accordance with the payment instructions of the court," resulting in an arrearage of more than $6,000; condition 14, by having indirect contact with the victim between 2016 and 2020; condition 22, by failing to turn in a driving log for the month of April 2019; and condition 25, by failing to submit to electronic monitoring on June 28, 2020. After an evidentiary hearing, the trial court revoked his probation, finding him in violation of conditions 1, 3, 10, and 22 but concluding that the State had failed to prove violations of conditions 14 and 25.

In reviewing the trial court's revocation order, this court first determines whether competent substantial evidence supported the finding of a willful and substantial violation. Timke v. State , 313 So. 3d 714, 716 (Fla. 2d DCA 2020). If so, this court then determines whether the trial court abused its discretion in revoking probation. Id .

Contrary to Bright's contention, competent substantial evidence—including the testimony of Bright's probation officer, the testimony of Bright's girlfriend, and Bright's own shifting explanations—supported the finding that his violations of conditions 1, 3, and 22 were willful. And although they may seem inconsequential at first blush, they indicate that contrary to what he repeatedly told his probation officer, Bright has been driving; that he has failed to disclose when he has been driving and where he has been going when he drives; and that he has attempted to venture outside of his approved area of travel. Furthermore, these violations take on added significance and seriousness when one considers not only that Bright is a sex offender but that the family of his victim still lives in the area and that Bright is prohibited from having direct or indirect contact with her. See State v. Carter , 835 So. 2d 259, 261 (Fla. 2002) (holding that a probationer's "failure to file a single monthly report may, in certain circumstances, justify probation revocation if such failure is willful and substantial and supported by the greater weight of the evidence" and recognizing that the trial court is obligated "to assess any alleged violations in the context of a defendant's case").

That said, competent substantial evidence does not support the trial court's finding that Bright willfully and substantially violated condition 10. Bright's financial obligations arose out of two different documents. The judgment provided that once on probation, Bright was required to submit to and pay the cost of electronic monitoring ($6.94/day) and was required to pay $368 for court costs and $25 for the cost of prosecution. No due date or schedule was set for the payment of any of these costs. Per the judgment, Bright was also required to make monthly payments of $50 toward the cost of his supervision and $2 to the Department of Corrections Training Trust Fund.

A separate sex offender probation order, however, provided that "[Bright's] cost of probation supervision will be waived during the probationary period [provided] that he is actually paying for counseling." Like the judgment, that order directed that Bright pay, as a condition of probation, court costs and the costs of prosecution, but also like the judgment, that order did not set forth a time frame for payment of those costs.

Although the violation affidavit alleged that Bright had violated condition 10 "by failing to make court costs and electronic monitoring payments to the probation officer in accordance with the payment instructions of the court," the probation officer acknowledged at the hearing that it was the probation office—not the court—that had created a monthly payment schedule for court costs and electronic monitoring costs. As we have stated previously, "a failure to abide by a payment...