Selig v. State
| Decision Date | 10 May 2013 |
| Docket Number | No. 2D12–258.,2D12–258. |
| Citation | 112 So.3d 746 |
| Parties | Samuel Claude SELIG, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.
Samuel Claude Selig challenges the revocation of his sex offender probation and his resulting five-year prison sentence. Because the trial court abused its discretion in finding that Selig willfully and substantially violated his supervision, we reverse.
Although the record before this court is limited, it is clear that Selig was originally convicted of a sexual offense in the early 1980s. Following his release from prison, he was convicted of failing to register as a sexual offender and placed on probation for that offense. Selig's probation subsequently was modified on numerous occasions, resulting in the imposition of additional conditions. On each of these occasions, the State attempted to violate Selig for conditions that were not included in the original terms of his probation. It appears that Selig acquiesced to the inclusion of the additional conditions by modification of the terms of his probation in efforts to remedy each instance of alleged violation.1
In June 2011, Selig was alleged to have committed the following three violations of his probation: (1) failing to follow the instructions of his probation officer to relocate (condition nine); (2) failing to account for three unexplained out-of-range alerts between his GPS bracelet and the monitor/charging dock (special condition added in 2009); and (3) failing to restart his sex offender therapy as instructed (special condition added in 2010). After hearing the testimony of two probation officers and Selig, the trial court orally found that Selig willfully and substantially violated all three conditions of probation as alleged.2
Selig, a painter, encountered problems in holding a job and a residence. It is undisputed that these problems stemmed from some kind of trauma and infection that resulted in the amputation of his arm. The amputation led to numerous complications and hospital stays, causing him to frequently relocate to different counties to be near hospitals for treatment. When he was not in the hospital for his own treatment, he was spending the majority of his time at medical facilities with his girlfriend, who was undergoing treatment for leukemia. During this time Selig continued to maintain contact with his probation officer and kept his GPS monitor charged and in range. But he stopped attending his therapy sessions either due to a lack of money or because of his medical treatments. His probation officer was aware that these treatments were temporarily suspended.
When Selig was released from the hospital and found himself without a place to stay, he contacted his probation officer and was told to report to the probation office. With the knowledge of the probation officer, Selig lived in a lean-to next to a dumpster behind the probation office while he searched for a place to stay. He used a wall outlet on the outside of the probation office building to charge his GPS monitor at night. During this same time period, Selig's probation officer told him that because he was out of the hospital, he should make arrangements to restart his required sex offender therapy sessions. Because the landlord of the building was not in favor of Selig's temporary housing solution behind the probation office building, Selig was given twenty-four hours to find somewhere else to live, which he did not do.
During the time he was living behind the office building, Selig's GPS monitor alerted three times, indicating that he was not in range of the charging device. The testimony regarding what Selig was told in terms of the GPS distance rules and whether he was ever aware the alerts occurred is ambiguous at best. It is clear that at some point, Selig told his probation officer that he thought the monitor was not functioning properly. The testimony also showed that Selig was always at his “residence” behind the office building on the mornings following each of the alerts. No one was ever sent to check on Selig at the time of the alerts. Selig stated that he never was aware of the alerts and that they all occurred during times when he was asleep. The probation officers could not clearly pinpoint the range of the GPS unit but acknowledged that the distance could vary and that the alerts might have happened due to Selig's sleep movements.
The trial court erroneously found that the State only had to establish that the alerts occurred in order to find a violation. By law the State was required to establish that the conduct leading to the violations was willful and substantial. See Correa v. State, 43 So.3d 738, 744 (Fla. 2d DCA 2010) (). We recognize that
intentional disregard of the GPS monitoring rules, tampering with the equipment, or actual violations of curfew or other activity restrictions will generally amount to willful and substantial violations of the conditions imposed. But where ... the apparent noncompliance with the rules results from equipment problems or the subject's unintentional failure to operate the equipment properly, the noncompliance with the rules does not rise to the level of a willful and substantial violation of probation or community control. It follows that the trial court abused its discretion in ruling to the contrary and in revoking [the defendant's] community control.
Here, the State failed to offer any evidence as to the cause of the GPS monitoring alerts and certainly did not offer evidence that the alerts were the result of Selig's conduct. And while it is accurate to say that the GPS alerts did not require law enforcement to ascertain Selig's whereabouts, that does not mean that a failure to do so should not have been factored into the trial court's determination regarding whether the State met its burden to show that the violations were willful and substantial. See Del Valle v. State, 80 So.3d 999, 1012 (Fla.2011) ...
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