Faulstick v. State
| Decision Date | 11 February 2022 |
| Docket Number | 5D21-0600 |
| Parties | JEFFERY LYNN FAULSTICK, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Marion County, Lisa D. Herndon Judge. LT Case No. 2019-CF-001989-A
Matthew J. Metz, Public Defender, and Joseph Chloupek Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente Assistant Attorney General, Daytona Beach, for Appellee.
Jeffrey Lynn Faulstick appeals the order revoking his probation and sentencing him to sixty months' incarceration. We affirm the trial court's ruling that Faulstick failed to advance a prima facie claim of self-defense as to new battery charges that the State alleged constituted a probation violation. We also affirm the trial court's finding that Faulstick had violated probation by calling the victim from jail in violation of a no-contact order entered at first appearance. However, because one of the bases for revocation was unsupported and another differed from the basis alleged by the State, we must reverse and remand to the trial court to determine whether it would revoke probation and impose the same sentence without consideration of the unsupported ground.
In 2019, Faulstick was charged with domestic battery-second offense, a third-degree felony, for striking Ms. Talia Powers. Pursuant to a negotiated plea, Faulstick pled guilty and was sentenced to 200 days in jail, with credit for 199 days served, followed by twenty-four months' probation. Condition 5 of his probation required that he "live without violating any law." Special Condition 18 required successful completion of the Batterer's Intervention Program within sixty days, and Special Condition 28 required "peaceful contact with victim."
Fewer than four months after the conditions were imposed, Faulstick was arrested for felony battery and domestic battery by strangulation for allegedly slapping and choking Ms. Powers. The State filed several iterations of the affidavit of probation violation, ultimately alleging in the Second Amended Affidavit that Faulstick committed three violations of Condition 5 by (1) being arrested for domestic battery by strangulation, (2) being arrested for battery, and (3) violating a no-contact order when he phoned Ms. Powers from jail; one violation of Special Condition 18 by failing to undergo the Batterer's Intervention "evaluation";[1] and one violation of Special Condition 28 by being arrested for battery on Ms. Powers.
Following the hearing on the Second Amended Affidavit, [2] the court rendered an amended revocation order finding that Faulstick had violated Condition 5 in the three ways the State alleged. These findings are supported by the evidence and affirmed. The trial court also found that Faulstick had violated Special Condition 18 by failing to undergo a Batterer's Intervention "evaluation" and Special Condition 28 by having contact with Ms. Powers when ordered not to have contact. Faulstick was sentenced to sixty months in the Department of Corrections with credit for 602 days already served.
On appeal, Faulstick argues that the State failed to prove, by a preponderance of the evidence, that he willfully and substantially violated Special Condition 18 (Batterer's Intervention Condition) and Special Condition 28 (Peaceful Contact Condition). Our standard of review for a violation of probation determination is abuse of discretion. Gauthier v. State, 949 So.2d 326, 326 (Fla. 5th DCA 2007). The court's ruling on the admissibility of evidence at a violation of probation hearing is also subject to the abuse of discretion standard of review, "but the court's discretion is limited by the rules of evidence and the applicable case law." Poole v. State, 284 So.3d 604, 607 (Fla. 5th DCA 2019) (quoting Horwitz v. State, 189 So.3d 800, 802 (Fla. 4th DCA 2015)).
"At a violation of probation [hearing], '[t]he State has the burden to prove by a preponderance of the evidence that the defendant violated a condition of probation willfully and substantially.'" Knight v. State, 187 So.3d 307, 309 (Fla. 5th DCA 2016) () (quoting Limbaugh v. State, 16 So.3d 954, 955 (Fla. 5th DCA 2009)). "A trial court's determination that a probationer willfully and substantially violated a term or condition of [her] probation must be supported by competent, substantial evidence." Laing v. State, 200 So.3d 166, 168 (Fla. 5th DCA 2016).
Mangini v. State, 302 So.3d 1058, 1059 (Fla. 5th DCA 2020) (footnote omitted).
We first analyze the trial court's finding that Faulstick violated Special Condition 18 (Batterer's Intervention Condition). The Second Amended Affidavit alleged that Faulstick had "fail[ed] to undergo a Batterer's Intervention evaluation . . . ." On appeal, Faulstick argues that the only evidence presented was Faulstick's testimony that he was in a hospital emergency room with a work-related injury on the date he was to attend the program evaluation, which was insufficient to sustain the probation revocation on this ground. We agree.
Faulstick's unrebutted testimony was that he attempted, upon his release from the emergency room, to make arrangements to attend the evaluation, but was told not to come "because of Covid." The record contains no evidence of the time of day that Faulstick was supposed to attend the Batterer's Intervention evaluation, and thus it cannot be determined that his morning emergency room visit did not overlap with the appointment time. In the absence of evidence that Faulstick's failure to attend was willful, the trial court erred in concluding the State had demonstrated a willful and substantial violation of Special Condition 18.
We next analyze the trial court's finding of a probation violation based on Special Condition 28 (Peaceful Contact Condition). The Second Amended Affidavit alleged Faulstick violated this condition by "being arrested for battery against the victim." In contrast to the act alleged, the trial court orally announced its finding that Faulstick violated Special Condition 28 by placing three jailhouse calls to Ms. Powers, which calls, we note, also served as the basis for the third violation of Condition 5. Consistent with the court's oral statement but in vaguer fashion, the court's written finding was that...
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