Timke v. State
| Decision Date | 02 December 2020 |
| Docket Number | Case No. 2D19-1584 |
| Citation | 313 So.3d 714 |
| Parties | Joshua Ryan TIMKE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and William Stone, Jr., Assistant Attorney General, Tampa, for Appellee.
Joshua Ryan Timke timely appeals an order revoking his sex offender probation based on a curfew violation and sentencing him to 201 months in prison. After we initially issued a per curiam affirmance, Mr. Timke filed a motion for rehearing or, in the alternative, a written opinion. We deny the motion for rehearing but grant the motion for written opinion in order to explain the basis for our affirmance.
At the revocation hearing, Mr. Timke's probation officer testified that he received an alert that Mr. Timke's ankle monitor had detected that he was out past his 10:00 p.m. curfew on January 19, 2019. When the probation officer confronted Mr. Timke about it the following day, Mr. Timke admitted that he had been out past his curfew but responded that his prior probation officer "wouldn't make a big deal of that." He stated that the reason he was late was that he had gotten stuck in traffic on his way back from downtown Orlando due to events being held there.
Ankle monitoring records showed that Mr. Timke left his residence in the Orlando area at 8:30 p.m. and arrived in downtown Orlando eighteen minutes later, at 8:48 PM. He began moving again at approximately 9:00 p.m., traveling at various speeds and stopping intermittently. He ultimately arrived home at 10:26 p.m.
Mr. Timke testified that he had previously discussed his curfew with his probation officer and knew that he was required to be home by 10:00 p.m. On the night of the violation, he left his home at about 8:30 p.m. to drive to downtown Orlando. He testified he did not leave the area until 9:15 or 9:20, expecting to arrive home "[a]round 9:50." He testified he then ran into "gridlock traffic" that caused him to take an alternate route home, making him miss his curfew.
Mr. Timke admitted he did not contact his probation officer or the Department of Corrections, even after it became obvious that he was going to miss his curfew. Instead, he only responded to a call from his ankle monitoring system after it notified him that it had detected via GPS that he was out past curfew.
Mr. Timke blamed the traffic on two events taking place in downtown Orlando that night: a monster truck rally and a basketball game. The court observed that both of these events had already started before Mr. Timke left his home and asked Mr. Timke to explain the discrepancy: Mr. Timke responded by simply stating there was "no traffic" on the way there, without addressing the incongruity identified by the court.
The trial court found that Mr. Timke had violated the curfew condition of his probation and that the violation was both willful and substantial. The trial court revoked Mr. Timke's probation and sentenced him at the bottom of the guidelines.
On appeal, Mr. Timke admits that he violated his curfew but asserts that the record lacks competent substantial evidence that the violation was willful and substantial. He contends that the violation was due to traffic conditions that arose on his drive home that "were beyond his control."
In reviewing a revocation order, this court first assesses whether the finding of a willful and substantial violation is supported by competent substantial evidence. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013). If so, then the question becomes whether the trial court abused its discretion in deciding to revoke probation. Id. at 623. On this record, we cannot say that the court's finding of a willful and substantial violation is not supported by competent, substantial evidence or that the revocation was an abuse of discretion.
Mr. Timke admitted he knew he had a mandatory curfew of 10:00 PM. Nonetheless, he decided to leave his home to drive to downtown Orlando at about 8:30 p.m.—ninety minutes before his curfew. That would risk a curfew violation any night of the week, but the fact that this was a Saturday night further increased the likelihood of events and traffic in that notoriously crowded metropolitan area. As Mr. Timke's probation officer testified at the hearing, "Anybody that lives in Orlando understands that there are always events in downtown."
When the probation officer discussed the violation with Mr. Timke, he responded that his prior probation officer would not have "ma[d]e a big deal" out of the violation. And Mr. Timke admitted he was planning to arrive home at "[a]round 9:50," leaving only ten minutes of cushion for complications or delays, such as traffic. These statements indicate that Mr. Timke was not particularly concerned about the risk of being out past curfew.
Further, Mr. Timke failed to contact his probation officer—or anyone else at the Department of Corrections—to seek permission to be out past curfew. He also did not notify the officer that he was going to violate his curfew, even after it became obvious during the drive home. Instead, he only returned a call from his ankle monitoring system after it had independently detected the curfew violation.
Finally, although no express finding was made as to Mr. Timke's credibility, it is clear on the record before us that the court did not find his story to be credible. Even when the court asked him directly about the clear discrepancy in his explanation of his trip, Mr. Timke declined to reconcile his testimony. And he never offered any explanation for why he went downtown shortly before curfew in the first place.
This evidence was sufficient to support the court's finding that Mr. Timke's violation was both willful and substantial. "The competent substantial evidence standard defers to the trial court's judgment because the trial court is in the best position to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses." Savage, 120 So. 3d at 622 (citations omitted).
Nonetheless, on appeal Mr. Timke focuses on the fact that he arrived home only twenty-six minutes late, asserting that revocation was inappropriate for such a brief delay. But the cases on which he relies are factually distinguishable.
First, he cites 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) (); Hugan v. State, 190 So. 3d 210, 211 (Fla. 2d DCA 2016) (); Thomas v. State, 672 So. 2d 587, 588 (Fla. 4th DCA 1996) (). By...
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