Hicks v. State, No. 2D04-1805.

CourtCourt of Appeal of Florida (US)
Writing for the CourtALTENBERND, Chief.
Citation890 So.2d 459
PartiesGary Mark HICKS, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 2D04-1805.
Decision Date29 December 2004

890 So.2d 459

Gary Mark HICKS, Appellant,
v.
STATE of Florida, Appellee

No. 2D04-1805.

District Court of Appeal of Florida, Second District.

December 29, 2004.


890 So.2d 460
James H. Buzbee, Plant City, for Appellant

Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Chief Judge.

Gary Mark Hicks appeals an order revoking his sexual offender probation and sentencing him to 151 months' imprisonment. The revocation arises out of Mr. Hicks' operation of a retail pet store in a mall. Because both the trial court and the probation officer had permitted Mr. Hicks' to continue his pet business for several years while he was on probation, and because the acts alleged to be violations are not inconsistent with the special terms of his probation, the trial court lacked competent, substantial evidence to support a finding of a willful and substantial violation of probation. Accordingly, we reverse and remand with instructions to reinstate Mr. Hicks' probation.

In 1999, pursuant to a negotiated plea agreement, Mr. Hicks was placed on two years' community control to be followed by eight years' probation for two counts of lewd and lascivious acts and one count of unlawful sexual activity with a minor. Mr. Hicks was designated a sexual predator and was required to receive sex offender supervision. Two of the standard conditions of supervision imposed upon Mr. Hicks are particularly relevant here. Condition 9 of the general standard conditions required Mr. Hicks to "promptly and truthfully answer all inquiries" directed to him by his supervising officer. Condition 72 of the standard sexual offender conditions provided: "You will not work for pay or as a volunteer at any school, day care center, park, playground or any other place where children regularly congregate."

At the time of Mr. Hicks' plea, he earned his livelihood through the operation of a retail pet store at a flea market. The parties and the court contemplated that Mr. Hicks would continue to operate this business, and therefore two special sexual offender conditions were imposed. Mr. Hicks was prohibited from employing any person under eighteen years of age in his business, and he was required to post a sign at the store at all times prohibiting any person under age eighteen from entering the store unless accompanied by an adult.

Between 1999 and February 2004, Mr. Hicks continued to operate his retail pet store with the knowledge of his probation officer. During this time, Mr. Hicks relocated his retail pet store to a storefront in a strip mall. When his probation officer objected, Mr. Hicks obtained a clarification from the court that permitted him to operate the business in the strip mall. Mr. Hicks also obtained a modification of the terms of his supervision that acknowledged that he was permitted to operate the wholesale portion of his pet business at his residence, but that the business at his residence was to be "strictly wholesale." Mr. Hicks was also explicitly permitted to

890 So.2d 461
attend trade shows where wholesale business was conducted

On February 9, 2004, Mr. Hicks' probation officer met with him regarding an unrelated matter. Mr. Hicks informed the officer that he was looking into a new business venture. The probation officer asked what the venture was, but Mr. Hicks replied that he did not want to tell the officer the details until it was a "done deal." According to the probation officer, she "sarcastically" asked Mr. Hicks, "You're not going to open up a daycare or a store where children congregate?" Mr. Hicks reiterated that he did not want to disclose the details until it was a done deal. According to the probation officer, "That was basically it."

The next day, Mr. Hicks signed a lease for the new business venture and called the probation officer to inform her of the details. Mr. Hicks explained the business was a kiosk in the center of a mall near the food court. Mr. Hicks planned to sell turtles and fish at the kiosk. He explained that he had an older employee who would operate the business and that his involvement would be limited to delivering the supplies and occasionally relieving the employee for brief breaks. The probation officer did not object to this new business arrangement, but instructed Mr. Hicks to post a sign at the kiosk at all times prohibiting people under age eighteen from approaching the booth without adult supervision, as he was required to do at his other retail location. Mr. Hicks posted the sign.

Thereafter, on two occasions, Mr. Hicks was seen at the mall kiosk. He was...

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7 practice notes
  • Savage v. State, No. 2D12–2269.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2013
    ...substantial evidence. See Cerny v. State, 65 So.3d 609, 613–14 (Fla. 2d DCA 2011) (Altenbernd, J., concurring specially); Hicks v. State, 890 So.2d 459, 460 (Fla. 2d DCA 2004); Glasier v. State, 849 So.2d 444, 445 (Fla. 2d DCA 2003) (affirming revocation where competent substantial evidence......
  • Rousey v. State, Case No. 2D16-4186.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2017
    ...is willful only where the defendant fails to make reasonable efforts to comply with the alleged violated condition. See Hicks v. State, 890 So.2d 459, 462 (Fla. 2d DCA 2004) ; Benedict v. State, 774 So.2d 940, 941 (Fla. 2d DCA 2001) ; Jacobsen v. State, 536 So.2d 373, 375 (Fla. 2d DCA 1988)......
  • Thompson v. State, No. 2D06-3978.
    • United States
    • Court of Appeal of Florida (US)
    • February 22, 2008
    ...violated a specific condition of his probation. See Conhagen v. State, 942 So.2d 444, 445 (Fla. 2d DCA 2006) (citing Hicks v. State, 890 So.2d 459 (Fla. 2d DCA 2004)). Thus the circuit court was required to consider 974 So.2d 598 whether the charged violations were willful and substantial a......
  • State v. Chambers, No. 2D03-2058.
    • United States
    • Court of Appeal of Florida (US)
    • December 29, 2004
    ...was under the seat until he grabbed it that night. But he did not allege this fact in his motion, so the State was never called upon to 890 So.2d 459 deny it. See Paleveda, 745 So.2d at 1027 (noting that the State need only traverse a sufficient motion). Thus, Chambers' motion to dismiss di......
  • Request a trial to view additional results
7 cases
  • Savage v. State, No. 2D12–2269.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2013
    ...substantial evidence. See Cerny v. State, 65 So.3d 609, 613–14 (Fla. 2d DCA 2011) (Altenbernd, J., concurring specially); Hicks v. State, 890 So.2d 459, 460 (Fla. 2d DCA 2004); Glasier v. State, 849 So.2d 444, 445 (Fla. 2d DCA 2003) (affirming revocation where competent substantial evidence......
  • Rousey v. State, Case No. 2D16-4186.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2017
    ...is willful only where the defendant fails to make reasonable efforts to comply with the alleged violated condition. See Hicks v. State, 890 So.2d 459, 462 (Fla. 2d DCA 2004) ; Benedict v. State, 774 So.2d 940, 941 (Fla. 2d DCA 2001) ; Jacobsen v. State, 536 So.2d 373, 375 (Fla. 2d DCA 1988)......
  • Thompson v. State, No. 2D06-3978.
    • United States
    • Court of Appeal of Florida (US)
    • February 22, 2008
    ...violated a specific condition of his probation. See Conhagen v. State, 942 So.2d 444, 445 (Fla. 2d DCA 2006) (citing Hicks v. State, 890 So.2d 459 (Fla. 2d DCA 2004)). Thus the circuit court was required to consider 974 So.2d 598 whether the charged violations were willful and substantial a......
  • State v. Chambers, No. 2D03-2058.
    • United States
    • Court of Appeal of Florida (US)
    • December 29, 2004
    ...was under the seat until he grabbed it that night. But he did not allege this fact in his motion, so the State was never called upon to 890 So.2d 459 deny it. See Paleveda, 745 So.2d at 1027 (noting that the State need only traverse a sufficient motion). Thus, Chambers' motion to dismiss di......
  • Request a trial to view additional results

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