Rousey v. State
| Citation | 226 So.3d 1015 |
| Decision Date | 30 August 2017 |
| Docket Number | Case No. 2D16-4186. |
| Parties | Mark ROUSEY, DC# H12058, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
Mark Rousey appeals the order revoking his community control in case numbers CF00–146 and CF13–5307. Because the trial court's finding that Rousey committed a willful and substantial violation of his community control was not supported by competent substantial evidence, we reverse.
Rousey was convicted of lewd or lascivious battery and lewd or lascivious molestation and was originally sentenced to concurrent terms of ten years' prison followed by five years' probation in case number CF00–146. In 2013, Rousey pleaded guilty to committing the new law offense of failing to register as a sex offender in exchange for five years' probation in case number CF13–5307. On November 20, 2015, the trial court revoked his probation in both case numbers and sentenced Rousey to concurrent sentences of eighteen months' community control followed by one year of probation on all counts. On April 21, 2016, the State filed a violation affidavit, alleging that Rousey violated conditions sixteen and nineteen of his community control by failing to remain confined to his approved residence and failing to follow the rules of electronic monitoring.
At the violation hearing, Rousey's community control officer testified that she gave Rousey permission to go to a cell phone store to repair his telephone and instructed him to return to his home by 1:00 p.m. When Rousey had not returned home by 1:00 pm, the monitoring center sent an alert to Rousey's monitoring device at 1:05 p.m. The community control officer unsuccessfully attempted to call Rousey on his cell phone and sent a message to Rousey's monitoring device at about 1:41 p.m. directing him to call her. Although Rousey acknowledged the message by pressing a button on his monitoring device, he did not immediately call his community control officer. The community control officer testified that Rousey's GPS monitoring records reflected that he returned home at 1:48 p.m. and that he was at a gas station near his home for the entire period of time he was out after 1:00 p.m.
Rousey testified that he did not have his own transportation and had to rely on his nephew to take him to the cell phone store. Rousey spent fifty minutes at the cell phone store only to learn that his phone could not be repaired there and that he would need to mail it in. After leaving the cell phone store, Rousey and his nephew stopped for gas; Rousey testified that his community control officer had previously indicated that he could stop for gas when needed without prior approval. Rousey explained that his nephew was unable to restart the car after purchasing gas and that they were stranded at the gas station for forty-six minutes. The State admitted a gas station receipt showing that Rousey's nephew purchased gas at 1:03 p.m. Rousey testified that neither he nor his nephew had a working phone and that he was therefore unable to immediately call his community control officer or respond to the alert on his monitoring equipment. When Rousey's nephew was able to start the car, the two returned to Rousey's residence, arriving at 1:48 p.m. Rousey testified that he called his community control officer using his stepmother's phone when he arrived home and explained the issue to her when she made contact with him later that evening.
The State argued that Rousey willfully failed to return his community control officer's calls and alerts and that he failed to make a good faith effort to return home by the approved time. The trial court agreed, finding that Rousey willfully and substantially violated condition sixteen by failing to remain confined to his approved residence and condition nineteen by refusing to follow the rules of electronic monitoring. The court revoked his supervision and sentenced him to fifteen years' prison for lewd or lascivious battery and to ten years' prison followed by two years' community control and three years' probation for lewd or lascivious molestation in case number CF00–146. The court sentenced him to two years' community control in case number CF13–5307. Rousey now appeals the revocation of his community control and his sentences in both case numbers.
"When making the decision to revoke a defendant's community control, the trial court must determine whether the State has proven a substantial and willful violation by the greater weight of the evidence." Hugan v. State, 190 So.3d...
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Henry v. State
...willful only where the defendant fails to make reasonable efforts to comply with the alleged violated condition." Rousey v. State, 226 So. 3d 1015, 1017 (Fla. 2d DCA 2017). And "[a] revocation based on the failure to complete a rehabilitation program must be shown to be the probationer's fa......
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Williams v. State
...relies on several cases to support his contention that his conduct was merely the product of ineptitude or negligence: Rousey v. State , 226 So. 3d 1015 (Fla. 2d DCA 2017) ; McCray v. State , 754 So. 2d 776 (Fla. 3d DCA 2000) ; and Stevens v. State , 599 So. 2d 254 (Fla. 3d DCA 1992).First,......
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Timke v. State
...cases where a probationer obtained, or at least sought, permission for the actions leading up to the violation. See Rousey v. State, 226 So. 3d 1015, 1016 (Fla. 2d DCA 2017) (officer gave permission for probationer to go to cell phone store); Hugan v. State, 190 So. 3d 210, 211 (Fla. 2d DCA......
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Judgment and sentence
...to approved residence for returning to residence at 1:48 pm rather than 1:00 pm, as he was stranded at a gas station. Rousey v. State, 226 So. 3d 1015 (Fla. 2d DCA 2017) Defendant did not willfully and substantially violate the conditions of his probation by failing to report to the probati......