Romero v. State
| Decision Date | 24 July 2020 |
| Docket Number | Case No. 5D19-2570 |
| Citation | 300 So.3d 794 |
| Parties | Carlos ROMERO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
Carlos Romero appeals his judgment and sentence imposed upon a violation of probation. The trial court found that Romero willfully and substantially violated a condition of his probation by committing trespass. Romero argues the State did not prove by the preponderance of the evidence that he knew he was trespassing. We disagree and hold that the trial court's finding of a willful and substantial violation is supported by competent, substantial evidence. We therefore affirm in all respects.
After pleading no contest to aggravated assault with a deadly weapon, Romero was adjudicated guilty and sentenced to time served in the county jail followed by two years of probation. Several months later, an affidavit of violation of probation was filed, alleging that Romero had been arrested for trespassing.
At the violation of probation hearing, the deputy who violated Romero testified that she responded to a location ("the Property") in Merritt Island because of a complaint that individuals, including Romero, were living in a wooded area there. Upon arriving, the deputy informed the individuals that they were not allowed to be there and would be arrested if they returned to the Property or the surrounding properties. The deputy confirmed that Romero was "absolutely clear" on her instructions.
The deputy returned the next day and saw Romero in the same wooded area on the Property. At the hearing, there was conflicting evidence as to where exactly in the wooded area Romero was located. The deputy testified that Romero had moved "off to the side" of where she originally located him by fifteen to twenty feet, but Romero was still very close to the exact spot where she had trespassed him. Using a demonstrative aid, the deputy marked the spot for the trial court's benefit. The deputy testified that when she approached Romero, he only told her that he did not have anywhere else to go, supporting an inference that he knew he was trespassing.
Next, Romero testified. According to Romero, after the deputy trespassed him, he moved twenty to twenty-five feet further back into the woods. Romero demonstrated his location by marking a different spot on the demonstrative aid. Romero maintained that he did not know he was still on the Property from which he was trespassed and had moved in an effort to comply with the deputy's instructions.
After Romero presented his testimony, the State suggested to the trial court that it would recall the deputy in rebuttal. However, the court indicated it could make credibility findings on its own and moved on to its oral ruling. The court then announced that it had concluded Romero willfully and substantially committed trespass and revoked Romero's probation. The court found the deputy's testimony more credible than Romero's and stated:
[L]aw enforcement went above and beyond the call of duty to make sure that it was entirely clear, that not only was [Romero] trespassed from that place, that he was trespassed from the surrounding areas, that he was not invited, and that law enforcement would be back and they would be enforcing it. So to assert that he did not know that he was trespassing again ... would be preposterous for the Court to believe.
An order revoking probation is reviewed for abuse of discretion. Woodson v. State, 864 So. 2d 512, 514 (Fla. 5th DCA 2004) ; see also State v. Carter , 835 So. 2d 259, 262 (Fla. 2002) (). "Whether a violation of probation is willful and substantial is a factual issue that cannot be overturned on appeal unless there is no evidence to support it." Walker v. State , 966 So. 2d 1004, 1006 (Fla. 5th DCA 2007) (citing Wilson v. State , 781 So. 2d 1185 (Fla. 5th DCA 2001) ). And in evaluating whether a trial court's determination is supported by sufficient evidence, appellate courts recognize that the trial court is in the best position to "weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses." Shaw v. Shaw , 334 So. 2d 13, 16 (Fla.1976) ; see also First Am. Farms, Inc. v. Marden Mfg. Co. , 255 So. 2d 536, 540 (Fla. 1st DCA 1971) (Wigginton, J., dissenting) .
On appeal, Romero concedes that the State presented sufficient evidence to demonstrate that he was, in fact, on the same Property he was trespassed from the previous day. However, Romero contends that the State's evidence was insufficient to refute his testimony that he genuinely believed he had moved far enough away to be off the Property. Specifically, Romero argues that his violation was not willful because he was unaware of the property boundaries, citing Archie v. State , 264 So. 3d 276 (Fla. 5th DCA 2019).
In Archie , this Court held that the evidence presented below was insufficient to support its finding that a probationer willfully and substantially violated his probation by leaving his residential county. Id. at 278. There, the only evidence presented to prove the probationer's knowledge that he left his residential county was his probation officer's testimony that the day after the incident, she spoke with him about a GPS tracking point indicating that he left Marion County, and he did not deny it.1 Id.
But Archie does not establish, as a matter of law, that there must be some evidence of a probationer's knowledge of actual property boundaries. Rather, whether a violation was "willful" remains a fact-specific inquiry that must be determined on a case-by-case basis. Russell v. State , 982 So. 2d 642, 646 (Fla. 2008). And factually, this case is quite different from Archie .
Here, there was disputed testimony as to where Romero was located when the deputy returned. It was within the province of the trial court to weigh the conflicting testimony and determine credibility. In doing so, the trial court accepted the deputy's testimony that Romero was essentially in the same place from which he was trespassed, characterizing Romero's contention that the trespass was unintentional as "preposterous." Thus, whether the State presented evidence that Romero knew of the actual property lines is not dispositive. Rather, the evidence was sufficient to demonstrate Romero willfully and intentionally was where he knew he should not be. Consequently, the trial court did not abuse its discretion in concluding Romero violated his probation.
AFFIRMED.
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