Davel K. Knight v. State , 187 So. 3d 307 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DAVELL KAVON KNIGHT,
Appellant,
v. Case No. 5D15-2028
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed March 4, 2016
Appeal from the Circuit Court
for Osceola County,
A. James Craner, Judge.
James S. Purdy, Public Defender, and
Craig R. Atack, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Nora Hutchinson Hall,
Assistant Attorney General, Daytona
Beach, for Appellee.
LAMBERT, J.
Appellant, Davell Kavon Knight (“Knight”), appeals an order revoking his probation
following a nonjury trial. Knight argues that the trial court erred in finding that he willfully
violated probation because the evidence elicited at trial substantiated his defense of
necessity. We conclude that the court did not abuse its discretion in revoking Knight’s
probation because the competent substantial evidence at trial supports the court’s finding
that Knight willfully violated his probation. Accordingly, we affirm.
Pursuant to an earlier plea agreement, Knight was adjudicated guilty of robbery by
sudden snatching and was placed on a two-year term of probation. Approximately three
months later, Knight was charged with violating probation by committing the criminal
offense of possession of a firearm by a convicted felon.1
At a violation of probation trial, “[t]he State has the burden to prove by a
preponderance of the evidence that the defendant violated a condition of probation
willfully and substantially.” Limbaugh v. State, 16 So. 3d 954, 955 (Fla. 5th DCA 2009)
(citing Ballien v. State, 942 So. 2d 981, 983 (Fla. 5th DCA 2006) (additional citation
omitted)). This burden of proof is interchangeably described as the greater weight of the
evidence standard. See Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (citing
Hanania v. State, 855 So. 2d 92, 94 (Fla. 2d DCA 2003) (additional citations omitted)).
Section 790.23(1)(a), Florida Statutes (2014), makes it unlawful for any person
convicted of a felony to have in his care, custody, or control any firearm. At trial, Knight
conceded that he was both a convicted felon and in possession of a firearm.
Nevertheless, Knight asserted that he did not willfully violate his probation by possessing
the firearm based upon the affirmative defense2 of necessity.
1
Condition five of Knight’s probation required that he not violate any laws. Knight
was also charged with violating other conditions of his probation, but the State did not
pursue these violations.
2
“An ‘affirmative defense’ is any defense that assumes the complaint or charges
to be correct but raises other facts that, if true, would establish a valid excuse or
justification or a right to engage in the conduct in question.” State v. Cohen, 568 So. 2d
49, 51 (Fla. 1990).
2
The necessity defense, oftentimes referred to as the justification defense,
recognizes “that there may be circumstances under which a convicted felon’s possession
of a firearm would be justified and his conduct declared not criminal.” Marrero v. State,
516 So. 2d 1052, 1054 (Fla. 3d DCA 1987) (footnotes omitted). The essential elements
of the defense of necessity are that:
(1) the defendant reasonably believed that his action was
necessary to avoid an imminent threat of death or serious
bodily injury to himself or others, (2) the defendant did not
intentionally or recklessly place himself in a situation in which
it would be probable that he would be forced to choose the
criminal conduct, (3) there existed no other adequate means
to avoid the threatened harm except the criminal conduct, (4)
the harm sought to be avoided was more egregious than the
criminal conduct perpetrated to avoid it, and (5) the defendant
ceased the criminal conduct as soon as the necessity or
apparent necessity for it ended.
Bozeman v. State, 714 So. 2d 570, 572 (Fla. 1st DCA 1998) (citing Marrero, 516 So. 2d
at 1054 (additional citations omitted)).
Knight testified at trial that he and various members of his family, including small
children, were inside his home when a group of armed men came uninvited to the home,
banging on Knight’s garage door in a threatening manner. Knight testified that he asked
the men to leave, but they refused to do so. Knight then went back into his home and
emerged with a firearm. Gunshots were fired, and, although there was a conflict in the
evidence as to whether Knight or one of the men in the group fired the shots, Knight
testified that he went back inside his home and, thereafter, threw the firearm over his
neighbor’s fence.
The court also heard testimony from two of Knight’s sisters who were present at
Knight’s home when this incident occurred, as well as testimony from one of the
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individuals who was outside Knight’s house that evening and who denied that anyone in
the group was in possession of a firearm. Having considered all of the testimony and
evidence, the trial court specifically found that the first three elements of the necessity
defense had not been established and that the greater weight of the evidence established
that Knight was in violation of his probation.
As a reviewing court, we are tasked with determining whether the trial court’s
finding of a willful and substantial violation of probation is supported by competent
substantial evidence. Savage, 120 So. 3d at 621 (citations omitted). Competent
substantial evidence has been defined by the Florida Supreme Court as “such evidence
as will establish a substantial basis of fact from which the fact at issue can be reasonably
inferred.” Id. at 622 (quoting De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957)). An
appellate court defers to the trial court’s evaluation of the evidence and its factual findings,
recognizing that the trial court is in the best position to “weigh the testimony and evidence
based upon its observation of the bearing, demeanor and credibility of the
witnesses . . . .” Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976); see also First Am. Farms,
Inc. v. Marden Mfg. Co., 255 So. 2d 536, 540 (Fla. 1st DCA 1971) (“It is not the province
of an appellate court to reevaluate conflicting evidence introduced at the trial or to say
what it would have done had it been sitting as a trier of the facts.” (quoting Carolina
Lumber Co. v. Daniel, 97 So. 2d 156, 158 (Fla. 1st DCA 1951))). Applying this deferential
standard, we conclude, without further elaboration, that competent substantial evidence
supports the trial court’s order revoking probation.
Section 948.06(2), Florida Statutes (2014), provides the trial court with the
authority and discretion to revoke, modify, or continue probation once the court has found
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a violation. See also Brown v. State, 455 So. 2d 635, 635–36 (Fla. 5th DCA 1984)
(holding that when the trial court has found a violation of probation by the greater weight
of the evidence, “the decision as to whether or not to revoke the [defendant’s] probation
is within the discretion of the trial judge” (citing Harris v. State, 453 So. 2d 228 (Fla. 5th
DCA 1984))). We review a trial court’s decision to revoke probation under the familiar
abuse of discretion standard described in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.
1980); that is “[i]f reasonable [persons] could differ as to the propriety of the action taken
by the trial court, then the action is not unreasonable and there can be no finding of an
abuse of discretion.” 382 So. 2d at 1203. We find no abuse of discretion in the trial
court’s decision to revoke Knight’s probation.
Lastly, our review of the record indicates that the written order on appeal does not
set forth the specific condition of probation which was violated. We therefore remand this
matter for the entry of a proper order specifying the condition of probation violated. See
Perez v. State, 958 So. 2d 1076, 1076 (Fla. 5th DCA 2007).
AFFIRMED; REMANDED for entry of proper order.
PALMER and ORFINGER, JJ., concur.
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