FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-4786
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GLEN JOSEPH DAVIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.
July 22, 2019
PER CURIAM.
Appellant claims that the trial court abused its discretion by
revoking his sex offender probation after finding that he was
“noncompliant.” We agree, reverse the revocation of probation, and
remand for further proceedings.
We agree with Appellant that the trial court’s finding that
Appellant was “noncompliant” was legally insufficient insofar as
the court failed to specify—either orally or in writing—each
condition of probation that Appellant had violated and indicate
that the violation was willful. See Del Valle v. State, 80 So. 3d 999,
1012 (Fla. 2011) (“Before a trial court can revoke probation, it must
find that the probationer willfully and substantially violated a
condition of probation.”); Crowley v. State, 124 So. 3d 434, 436 (Fla.
1st DCA 2013) (stating that the appellate court is precluded from
inferring a finding of willfulness from the trial court’s
determination that the defendant violated his probation); Wilson
v. State, 581 So. 2d 255 (Fla. 1st DCA 1991) (reversing the
revocation of probation where the trial court concluded that the
probationer violated the “terms and conditions” of his probation
without making a more specific oral pronouncement or entering a
written revocation order reciting the specific violations).
We also agree with Appellant that the State failed to prove
that Appellant willfully violated a substantial condition of his
probation. At the probation violation hearing, the State presented
testimony that Appellant violated his sex offender probation by
failing to update his address with the Department of Highway
Safety and Motor Vehicles (DHSMV). In Easterling v. State, 989
So. 2d 1285 (Fla. 1st DCA 2008), this court held that the failure to
comply with this requirement did not constitute a willful and
substantial violation of probation where uncontradicted evidence
demonstrated that the sex offender made a good faith effort to
comply and the only reason he failed to complete the registration
was because he lacked $10 to obtain a new license. Id. at 1287.
Here, Appellant testified that he was unable to update his
driver’s license with the DHSMV because he did not have the
money to pay the $31 fee. Although defense counsel argued that a
willfulness determination necessitated a finding that Appellant
had the ability to pay, the court never made the required analysis.
See Del Valle, 80 So. 3d at 1002 (holding that “before a trial court
may properly revoke probation and incarcerate a probationer for
failure to pay, it must inquire into the probationer’s ability to pay
and determine whether the probationer had the ability to pay but
willfully refused to do so”) (emphasis added). Instead of inquiring
about Appellant’s ability to pay and whether his purported failure
was willful, the court brusquely ended the hearing, foreclosing
additional argument and testimony.
On appeal, the State asserts that Appellant’s inability to pay
did not excuse his failure to comply because Appellant had the
ability to request an exemption from the fee under section
322.21(1)(f), Florida Statutes, which was added in 2014 and
exempts applicants who are homeless or whose annual income is
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at or below the federal poverty level. Ch. 2014-216, §33, Laws of
Fla. Because this statutory provision was not addressed below, it
is unclear whether Appellant had the opportunity to obtain an
exemption from the fee under section 322.21(1)(f). Accordingly, we
reverse and remand for further proceedings to address this issue.
See Deese v. State, 31 So. 3d 951, 953 (Fla. 1st DCA 2010).
The State also presented testimony at the hearing that
Appellant violated his sex offender probation by failing to live at
his parents’ residence. This was not a basis to revoke Appellant’s
probation because (1) it was not charged in the probation violation
affidavit; (2) although the court indicated at the beginning of the
hearing that there was an unspecified “addendum” to the affidavit,
no amended affidavit appears in the record; and (3) defense
counsel noted that he had not received this “addendum” until the
morning of the hearing. See Raimondi v. State, 253 So. 3d 749, 751
(Fla. 3d DCA 2018); Johnson v. State, 899 So. 2d 436, 438-39 (Fla.
4th DCA 2005). Furthermore, the State failed to prove that any
violation was willful where it was undisputed that (1) Appellant’s
parents refused to let Appellant live with them; (2) Appellant made
a good faith effort to find alternative housing with the assistance
of his probation officer; and (3) Appellant could not afford the only
suitable housing available for sex offenders because he was
waiting for his social security disability to be reinstated. See Selig
v. State, 112 So. 3d 746, 749-50 (Fla. 2d DCA 2013); Newton v.
State, 996 So. 2d 960, 962-63 (Fla. 2d DCA 2008).
In conclusion, we reverse the revocation of Appellant’s sex
offender probation and remand for further proceedings on the
issue of whether Appellant had the opportunity to obtain an
exemption from the fee for updating the address on his driver’s
license.
REVERSED and REMANDED for further proceedings.
ROWE, JAY, and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
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