King v. State, 1D18-1227

• Decision Date: 22 April 2019
• Docket Number: No. 1D18-1227,1D18-1227
• Parties: Troy Gregory KING, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

268 So.3d 936

Troy Gregory KING, Appellant,

v.STATE of Florida, Appellee.

No. 1D18-1227

District Court of Appeal of Florida, First District.

April 22, 2019

Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Frank X. Moehrle and Amanda Stokes, Assistant Attorneys General, Tallahassee, for Appellee.

Wolf, J.

Appellant challenges the trial court's order that found him in violation of three conditions of his probation and revoked but reinstated probation with modified terms. We agree with appellant that there was no competent, substantial evidence to support the trial court's findings that appellant willfully and substantially violated these conditions and reverse.

First, the court found appellant willfully and substantially violated the condition of his probation that required him to wear an electronic monitoring device. The State presented evidence that on one occasion, appellant moved away from the device for approximately five minutes before returning to it. He told his probation officer that he left the device on the charger in the welcome center of the homeless shelter where he resided and walked into the cafeteria. When appellant was contacted by the monitoring company, he told them what happened. The State failed to present any evidence that appellant intentionally violated the electronic monitoring rules. Evidence that a probationer walked away from a monitoring device for a brief period of time is not competent, substantial evidence of a substantial and willful violation. See Channell v. State , 200 So.3d 247, 248 (Fla. 1st DCA 2016) ; Comolli v. State , 152 So.3d 119, 120 (Fla. 2d DCA 2014) ; Correa v. State , 43 So.3d 738, 745 (Fla. 2d DCA 2010). Thus, we reverse this finding.

Second, the court found appellant willfully and substantially violated the condition of his probation that he complete sex offender treatment. Appellant testified that he tried to attend his first appointment for his initial assessment, but he was told it would cost $ 90. He tried to make a partial payment of $ 40, which was all the money that he had, but he was told he had to pay the full amount up front. Appellant stated he did not bother going the next time he had an appointment because he had not been able to save up any more money. He stated he was homeless and jobless, despite actively searching for employment.

The probation officer testified and confirmed that appellant would have been required to pay $ 90 for his initial assessment. To her knowledge, the money was due up front and partial payments were not accepted. Both times appellant missed an appointment, he told her it was because he could not afford the fee. She stated appellant was homeless and unemployed, though he had completed a referral to an employment specialist and had completed job search logs on his own, documenting that he was searching for a job.

" ‘In probation revocation proceedings for failure to pay a monetary obligation as a condition of probation, the trial court must find that the defendant's failure to pay was willful—i.e., the defendant has, or has had, the ability to pay the obligation and purposefully did not do so.’ " Aviles v. State , 165 So.3d 841, 843 (Fla. 1st DCA 2015) (quoting Del Valle v. State , 80 So.3d 999, 1012 (Fla. 2011) )....