Hurst v. State, 1D06-1230.

• Decision Date: 17 November 2006
• Docket Number: No. 1D06-1230.,1D06-1230.
• Parties: Kevin A. HURST, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1252

941 So.2d 1252

Kevin A. HURST, Appellant, v. STATE of Florida, Appellee.

No. 1D06-1230.

District Court of Appeal of Florida, First District.

November 17, 2006.

Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant Kevin Hurst brings this appeal from a judgment and sentence finding him in violation of his sex offender probation for failure to meet a court-imposed curfew. Because we find that the trial court did not abuse its discretion in entering the order of violation, we affirm the trial court's order below.

Appellant was initially convicted, on November 7, 2001, with one count of lewd and lascivious molestation. He was sentenced to 333 days imprisonment, with credit for 333 days served, followed by 15 years sex offender probation. One condition of the probation was a court-imposed curfew, such that appellant was required to be at his permanent residence at all times between the hours of 10:00 p.m. and 6:00 a.m. Appellant was subsequently released on November 8, 2001.

On November 4, 2005, the Florida Department of Corrections filed a Violation Report, with attached affidavit, alleging that appellant had violated the terms of his probation by missing curfew. The report alleged that appellant's probation officer had visited appellant's trailer on October 31, 2005, at 11:48 p.m, and was unable to confirm that appellant was at home. The report noted that the officer repeatedly knocked on the appellant's door, and pounded on the side of the trailer where she knew appellant's bedroom to be, but appellant never responded. Appellant argues that he was at home when Officer Whitten visited, but that he had the flu and had taken a double dose of cold medicine. At a violation of probation hearing, held January 5, 2006, the trial court noted after hearing the evidence, "I don't believe [appellant] was in the residence." Accordingly, the court entered an order finding appellant in violation of his probation and sentenced him to ten years imprisonment, with credit for six years and twenty-four days served, followed by five years probation. Appellant appeals from this order.

Appellant argues on appeal that the trial court erred in finding him in violation of his probation because the state failed to prove that appellant committed a willful and substantial violation. We note that it is, by now, well settled that "[a] trial court is vested with broad discretion in determining whether a probationer has violated a condition of the probation." See Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993). Accordingly, the appropriate standard of review for judgments finding probation violations is whether the trial court abused its discretion in finding the violation. See State v. Carter, 835 So.2d 259, 262 (Fla. 2002); see also Bell v. State, 643 So.2d 674, 675 (Fla. 1st DCA 1994).

Appellant relies upon the Second District's opinion in Brown v. State, 813 So.2d 202 (Fla. 2d DCA 2002), as support for the proposition that, in proving a willful violation of probation, the State must allege something more than the mere fact that a probationer did not answer the door. In that case, the court did note that "[e]stablishing that no one answered the door at that unreasonable hour of the morning [2:00 a.m.] was insufficient to prove a violation." Id. at 204. Nonetheless, that case is factually distinguishable from the one at hand. In Brown, while the State had little more than the fact that the probationer did not come to the door at 2:00 a.m., the probationer produced several family members, as witnesses, who testified Brown had been at home and asleep on the night in question. Id. at 203. Thus, the State's evidence was insufficient to demonstrate a willful violation of probation.

In the instant case, the only evidence before the trial court was the opposing testimony from two witnesses. The probation officer testified that she knocked loudly and repeatedly and, indeed, that she woke appellant's neighbors, but that appellant never responded. Conversely, appellant testified that he was at home and asleep. Essentially, this case presents a credibility dispute between witnesses. The trial court apparently resolved that dispute; the court noted at the conclusion of the evidence, "I don't believe [appellant] was in the residence." An appellate court must defer to the lower court's findings with respect to witness credibility. See Vanstraten v. State, 901 So.2d 391, 393 (Fla. 1st DCA 2005) ("To the extent that the testimonial evidence conflicts, it is a trial court's duty to assess the credibility of witnesses and to determine which testimony warrants belief"); see also Porter v. State, 788 So.2d 917, 923 (Fla.2001) ("We recognize and honor the trial court's superior vantage point in assessing the credibility of witnesses"). Because the trial court was within its discretion to believe Officer's Whitten's testimony over that of appellant, this court should refrain from reweighing the evidence now.

AFFIRMED.

BARFIELD AND POLSTON, JJ., CONCUR; ERVIN, J., DISSENTS WITH OPINION.

Ervin, J., dissenting.

Although clearly our review standard of an order revoking probation, as recognized by the majority, is that of abuse of discretion, other standards, which the majority implicitly alludes to by its references to Porter v. State, 788 So.2d 917, 923 (Fla.2001), and Vanstraten v. State, 901 So.2d 391, 393 (Fla. 1st DCA 2005), are also implicated, notably that of competent, substantial evidence. My departure from the majority's decision is based on the fact that I am unable to discern any...