Timothy Gene Malone v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

TIMOTHY GENE MALONE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D13-1091

STATE OF FLORIDA,

Appellee.

_____________________________/

Opinion filed September 10, 2014.

An appeal from the Circuit Court for Union County.
David A. Glant, Judge.

Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney
General, Tallahassee, for Appellee.

PER CURIAM.

Timothy Gene Malone challenges the trial court’s order revoking his

probation based on multiple violations and the imposition of a sentence of fifteen

years’ imprisonment as a consequence of the probation violation. As correctly
conceded by the State, the record does not support that Malone willfully and

substantially violated certain conditions of probation, we reverse the order to the

extent that it relies on those grounds for revocation, and remand for additional

proceedings.

Malone was charged with violating four conditions of his probation:

condition 2 (failure to pay the monthly cost of his supervision); condition 3 and

condition 23 (failure to pay court costs and the cost of drug testing); and condition

16 (failing to successfully complete or remain in psychosexual treatment until the

provider determines such treatment is no longer necessary). Subsequently, DOC

filed an addendum to the original violation report that included an additional

violation of condition 3 (changing residence without obtaining consent of the

probation officer).

After rejecting two proposed plea agreements, the trial court held a violation

of probation (VOP) hearing. At the VOP hearing, the trial court initially took

judicial notice of Malone’s earlier judgment and sentence and the order of

probation in the court file. The State called Correctional Probation Officer Carolyn

Gaten, who testified that she was in charge of supervising Malone while he was on

probation, and that Malone was instructed as to the orders and conditions of his

probation. Officer Gaten stated that Malone had not paid any of his required fees,

2
and had not filed any employment logs to document his attempts to gain

employment.

Officer Gaten testified that the mental health therapist from Malone’s

original treatment program notified her that Malone had been removed from

treatment in that program due to a conflict of interest, which consisted of someone,

who identified themselves as Malone’s attorney, calling the program and accusing

the program of violating Malone’s rights. Officer Gaten stated that Malone was

referred to another treatment program; that he notified the probation office that he

lacked the funds to pay for the appointment on the date of referral; and that another

appointment was scheduled for him at a time when he said he could make the

payment. Officer Gaten stated that Malone failed to show up to the rescheduled

appointment, and that she had not had any contact with Malone after that missed

appointment. Officer Gaten testified that she never gave Malone permission to

either move from the Danese Street address listed in his probation file or remove

his personal location monitor.

On cross examination, Officer Gaten stated that Malone was given referrals

to employment sites and was supposed to turn in unemployment referrals if he was

not able to obtain employment. Officer Gaten testified that up until he was

charged with VOP, Malone regularly reported to her; attended sex offender

3
treatment sessions as scheduled until he was removed from his initial program;

passed his drug screens; and met his curfew requirements.

Malone took the stand and testified that he attempted to obtain employment

at the places to which the probation office referred him, but that he could not work

at those places, such as a shopping mall, due to his sexual offender status. Malone

stated that he unsuccessfully tried to obtain employment as a day laborer, and

eventually resorted to collecting aluminum cans and trapping and selling a raccoon

to pay for his court-ordered psychosexual therapy. Malone testified that he is not

from Florida; that he has no family or friends to assist him monetarily; and that he

has no bank accounts or other sources of income or property. Malone stated that

he advised Officer Gaten that he was trying to find employment.

Malone stated that his former roommate, a transgendered individual known

alternately as James or Sharon Fisher, with whom he had been operating a

boardinghouse, called Malone’s first treatment program posing as his attorney so

that Malone would get thrown out, be found in violation of his probation, and

enable the roommate to retain all the profits from the boardinghouse business.

Malone testified that the second treatment program in which he was enrolled cost

more than the original program; that he nevertheless had come up with the money

to pay for the class; but that the night before the class, the money was stolen from

his nightstand.

4
 Malone admitted to leaving the Danese Street residence without permission

and to cutting off his GPS monitoring bracelet, but only did so because the

probation office told him he was going to either go to the class, which he had no

money to pay for, or go to jail. Malone also conceded that he did not turn in any

documentation showing that he was searching for employment.

The trial court asked Malone if he had informed Officer Gaten about his

problems with Fisher, and Malone replied that he had told Officer Gaten about the

issues. The trial court recalled Officer Gaten to the stand, and she stated that she

did not remember Malone telling her about Fisher lodging harassing calls to his

treatment program; rather, she learned about the calls from the documentation sent

by the treatment program. Officer Gaten stated that she had received various calls

from Fisher, adopting the persona of either James or Sharon, who complained

about Malone not fulfilling his probation obligations.

Following the testimony, the trial court found Malone was in willful and

substantial violation of his probation, opining that he had failed to meet several of

his conditions of probation, including his monetary requirements; that he could

offer nothing to prove that he had actively been seeking employment; that he chose

to cut off his GPS monitor and leave his registered residence; and that he chose not

to attend his sex offender treatment program. In mitigation of sentence, Malone’s

counsel argued that Malone turned himself in when he became aware a warrant for

5
his arrest had been issued, and that his primary problem was financial; the trial

court retorted “[w]hat was financial about cutting the electronic monitoring

bracelet and leaving it abandoned?” Based on the VOP, the trial court revoked and

terminated probation, and imposed a sentence of 15 years’ imprisonment, with

credit for time served, in both DOC and county jail. The written order of probation

revocation stated that Malone was in violation of conditions 2, 3, 22, and 73. This

appeal ensued.

“To justify revocation, a violation of a condition of probation must be both

willful and substantial.” Mier v. State, 58 So. 3d 319, 321 (Fla. 1st DCA 2011).

“This court reviews the trial court's decision to revoke probation for an abuse of

discretion.” Hostetter v. State, 82 So. 3d 1217, 1219 (Fla. 1st DCA 2012). When

some grounds of probation violation are upheld and others are invalidated, the

proper course of action is to reverse the order revoking probation and remand for

reconsideration, unless the record clearly demonstrates that the trial court would

have revoked probation based only on the upheld revocation grounds. Id. at 1221;

see also David v. State, 75 So. 3d 386, 388 (Fla. 1st DCA 2011) (“Although a

violation of condition 18 could alone support revocation, because the record does

not establish that the trial court would have revoked probation and imposed a 15–

year sentence on a violation of condition 18 alone, this court is required to remand

6
for the trial court to reconsider its decision to revoke probation and to impose the

same sentence.”).

Pursuant to the State’s concession that finding Malone willfully and

substantially violated the monetary conditions of his probation was an abuse of

discretion, at the very least the order of revocation must be remanded to allow the

entry of an amended order omitting those violations as grounds for revocation,

namely conditions 2, 3, and 23. 1 Likewise, Malone testified that the reason he

failed to attend his court-ordered treatment at the second treatment program was

because he lacked the funds to pay for that session. Malone further testified that

the probation office instructed him that if he failed to attend the scheduled

treatment class, he would be sent back to jail.

Based on this testimony, which was uncontroverted by any of the State’s

witnesses, Malone’s violation of condition 16 was rooted in his inability to pay. It

seems that the same logic the State recognizes applies to invalidate the violations

of 2, 3, and 23 as grounds for revocation would, under the circumstances, apply

with equal force to invalidate the violation of condition 16 as a basis for

revocation. Accordingly, Malone’s violation of condition 16 could be interpreted

as substantial, but not willful.

1
Due to an apparent scrivener’s error, the revocation order states that Malone was
found guilty of violating conditions 2, 3, 22, and 73; whereas Malone was actually
charged with violations of conditions 2, 3, 23, and 16.
7
 Nevertheless, there is competent substantial evidence that Malone removed

his GPS tracking monitor and left his listed residence without permission from his

probation officer in violation of a provision of condition 3; Malone conceded this

violation at the VOP hearing and in his appellate brief. Because this is the only

violation supported by the record, the case must be remanded for the trial court to

reconsider its revocation and sentencing decisions because it is not clear whether it

would have revoked probation or imposed the same sentence based on only one

violation. See Hostetter, 82 So. 3d at 1221; see also David, 75 So. 3d at 388.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for

further proceedings consistent with this opinion.

VAN NORTWICK, CLARK, AND SWANSON, JJ., CONCUR.

8