CORREA v. State of Fla.

• Decision Date: 23 June 2010
• Docket Number: No. 2D08-6090.,2D08-6090.
• Citation: Correa v. State, 43 So.3d 738 (Fla. App. 2010)
• Parties: Rico CORREA, a/k/a Rico Jose Correa, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

43 So.3d 738

Rico CORREA, a/k/a Rico Jose Correa, Appellant, v.STATE of Florida, Appellee.

No. 2D08-6090.

District Court of Appeal of Florida, Second District.

June 23, 2010.

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James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Rico Correa challenges the revocation of his community control based on his alleged noncompliance with Global Positioning System (GPS) monitoring rules and his resulting sentences.Because the State failed to prove that Mr. Correa willfully and substantially violated the conditions of community control that he was alleged to have violated, we reverse.

I.THE FACTS AND PROCEDURAL HISTORY

On February 25, 2008, Mr. Correa was adjudicated guilty of two felony offenses and sentenced to two years' community control on each offense.The two-year periods of community control were designated to run concurrently.¹Standard condition (13) of the terms of Mr. Correa's community control provided as follows:

If on community control you may, at the discretion of the Department of Corrections, be placed on Electronic Monitoring.However, for offenses committed on or after September 1, 2005, if you are placed on community control or probation, you shall be placed on electronic monitoring if you meet the conditions set forth in F.S. 948.30(3).If electronically monitored you shall wear the device designated by the Department of Corrections at all times and you shall comply with all Rules and Regulations of the Electronic Monitoring Program.You are financially responsible to the Department for any lost or damaged equipment.You will pay $30.00/month for RF monitoring and $50.00/month for GPS monitoring, unless otherwise set or waived by the Court actually be rather extensive.The MTD would not normally alert when Mr. Correa just stepped outside the house.If there was no obstruction between the MTD and the ankle bracelet, the subject could be as much as 100 feet away and the MTD would not alert.On the other hand, Mr. Mays explained that an alert could occur when the subject was as close as three feet away if there was some obstruction, e.g., a refrigerator, between the bracelet and the MTD.

Mr. Correa testified that he had not initially received any instruction concerning the technical use of the MTD and its charging unit.He said that he was told to "[s]tay close to the box."Mr. Correa claimed that no one told him about having to be within a specific distance from the MTD.Mr. Correa admitted that Officer Blanton told him that the best way to prevent "bracelet-gone" alerts while at home was to stay inside, but he testified that he was never directly ordered to stay inside the residence or that he could not go outside on the front porch.Mr. Correa asserted that on the occasions when he was called by the monitoring company because of a "bracelet-gone" alert, he was usually outside his house, generally on the front porch.

Despite the absence of any evidence that Mr. Correa was absent when he was supposed to be at home, there was one occasion when it took about a half-hour to reach him.This incident occurred on July 4, 2008.The July 4 incident involved an alert indicating that the MTD had been removed from its charger when Mr. Correa was supposed to be at home.

Officer Blanton testified that on July 4, 2008, he personally observed Mr. Correa outside the house, where "he wasn't supposed to be."When Officer Blanton saw Mr. Correa on that occasion and asked him where his monitoring device was, Mr. Correa readily admitted it was inside the house.Officer Blanton testified that this was a violation because he had instructed Mr. Correa multiple times to remain indoors during home curfew hours to avoid further "bracelet-gone" alerts.

On the evening of July 4, 2008, Diane Lehman, a probation officer, was on call.At about 9:19 p.m., the monitoring company received an alert indicating a home curfew violation, i.e., that Mr. Correa's MTD was not in its charger.The monitoring company notified Officer Lehman of the problem at 9:51 p.m. Officer Lehman called the monitoring center and asked them to send Mr. Correa a text message (to the MTD) to place the MTD in the charger.At 10:20 p.m., an hour after the initial alarm, Mr. Correa had not responded, so Officer Lehman called him on his home phone.When Mr. Correa came to the phone, Officer Lehman told him the reason for the call.Mr. Correa told her that he did not hear the MTD ringing because it was in "vibrate" mode.Mr. Correa then asked her to hold for a minute.When he came back, he told her that he checked the MTD and found it was not properly seated in the charger.At 10:31 p.m., the alarm had not yet cleared.Officer Lehman told the monitoring center to do a "points download."⁸At 11 p.m. the alarm had still not cleared.Officer Lehman sent Mr. Correa a text message to call her.He did not do so.Three minutes later, at 11:03 p.m., she sent him another message telling him to take the MTD outside to see if it would clear the alarm.At 11:15 p.m. the alarm cleared.⁹

At the conclusion of the hearing, the trial court orally found that Mr. Correa was in willful and substantial violation of standard condition (13) and special condition (54) of his community control but did not mention standard condition (7).However, the written order properly identifies the two charged violations: special condition (54) and standard condition (7).¹⁰At the hearing, the trial court did not explain the basis for its ruling, and the written order provides no additional clarification.Thus this court does not know the specific conduct of Mr. Correa that the trial court deemed sufficient to constitute a willful and substantial violation of the conditions of his community control.After revoking Mr. Correa's community control, the trial court sentenced him to two lengthy prison terms.¹¹One of the prison sentences is to be followed by a substantial period of probation.This appeal followed.

II.DISCUSSION

We turn now to an examination of the evidence supporting a violation of conditions (54) and (7).When seeking to revoke a defendant's community control, the State must prove by the greater weight of the evidence that a willful and substantial violation occurred.Anthony v. State,854 So.2d 744, 747(Fla. 2d DCA2003)."The trial court has broad discretion to determine whether a willful and substantial violation occurred, and on appeal, the standard of review is whether the trial court abused its discretion."Id."That is, the appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [the] violation was both willful and substantial."State v. Carter,835 So.2d 259, 262(Fla.2002).

Before we discuss Mr. Correa's alleged violations, we will briefly review several Florida cases that have addressed alleged violations of GPS monitoring rules.In a recent case, this court approved the trial court's finding of a violation of GPS monitoring rules where the evidence showed that the subject intentionally removed the MTD "from his person occasionally while he was working" and repeatedly failed to keep the MTD properly charged.Soliz v. State,18 So.3d 1094, 1097(Fla. 2d DCA2009).In another recent case, it appeared that the subject, who was on conditional release, did not violate the conditions of his supervision when he had complied with his supervising officer's instructions and "was repeatedly given defective monitoring equipment, which malfunctioned on numerous occasions."Cofer,28 So.3d at 929(Hazouri, J., concurring).In two other cases, evidence from the monitoring equipment established the subject's noncompliance with curfew or other activity restrictions.SeeAnthony,854 So.2d at 746-48;Alarcon v. State,814 So.2d 1180, 1181(Fla. 4th DCA2002).¹² community controllee violates a home curfew restriction by being outside the residential structure but within the curtilage of his or her residence appears to be unsettled in Florida.¹⁴Cf. Jackson v. State, 785 So.2d 524, 526(Fla. 4th DCA2000)(holding that under the specific facts of that case, a community controllee's act of standing in the yard in the immediate area of her residence did not demonstrate a willful and substantial violation of the condition that she remain confined to her residence).

Finally, we note that although condition (7) requires Mr. Correa to comply with his CCO's instructions, the affidavit of violation only alleges as grounds for the violation of condition (7) that Mr. Correa failed to follow the GPS monitoring rules as instructed.Because there is no evidence that Mr. Correa failed to follow the GPS monitoring rules, he cannot be said to have disobeyed the instructions of his CCO in this regard.He may arguably have disobeyed the instructions of his CCO in some other respect, but no other grounds for the failure to comply with this condition were alleged.

III.CONCLUSION

The purpose of the electronic monitoring of probationers, community controlees, and parolees is not punitive.Taylor v. Remmers,2002 WL 554520 *4(N.D.Ill. App.12, 2002);Hadley v. Montes,379 Ill.App.3d 405, 318 Ill.Dec. 472, 883 N.E.2d 703, 709-711(2008).Instead, the electronic monitoring of these persons serves two more positive goals.First, electronic monitoring enables a limited number of supervising officers to supervise persons...