Reynaldo Antonio Aviles v. State of Florida , 165 So. 3d 841 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
REYNALDO ANTONIO NOT FINAL UNTIL TIME EXPIRES TO
AVILES, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D14-2542
v.
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed June 8, 2015.
An appeal from the Circuit Court for Bradford County.
Robert Groeb, Judge.
Nancy A. Daniels, Public Defender, and Zachary Lawton, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Jessica DaSilva, Assistant Attorney
General, Tallahassee, for Appellee.
BILBREY, J.
Following his entry of a negotiated plea and sentence for selling or
dispensing drugs without a prescription, appellant was placed on probation. On
March 3, 2014, an affidavit of violation of probation was filed charging violations
of three general conditions of probation and of two special conditions. A contested
hearing was held on the alleged violations. At the conclusion of the hearing, the
trial court found appellant had violated general conditions 3, 8, and 10 and special
conditions 2 and 3 of his probation. Based on the violations, the trial court revoked
appellant’s probation and sentenced him to five years of imprisonment, with credit,
for the underlying offense. A written order followed; however, the written order
did not conform to the trial court’s oral pronouncement, in that the written order
provides that appellant “violated conditions 9, 22 and 28, of the Order of Probation
and Community Control.” The appellant then filed an appeal of the order revoking
probation.
An order revoking probation is reviewed for an abuse of discretion. State v.
Carter, 835 So. 2d 259 (Fla. 2002). But, to permit revocation of probation, a
violation must be willful and substantial. Odom v. State, 15 So. 3d 672 (Fla. 1st
DCA 2009); Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013). Reasonable
efforts to comply with a condition of probation cannot be deemed a willful
violation. Odom. Furthermore, a written order revoking probation must conform
to the trial court's oral pronouncement. Crews v. State, 128 So. 3d 983 (Fla. 1st
DCA 2014); Fletcher v. State, 149 So. 3d 147 (Fla. 4th DCA 2014).
Appellant raises three challenges to the revocation of probation. He first
argues that the trial court erred in basing revocation, in part, on his failure to
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maintain full-time employment. The Appellant is correct that it is improper to
require a probationer, without exception, to maintain full-time employment as a
condition of probation because factors out of the probationer’s control could
prevent completion of this requirement. See Miller v. State, 691 So. 2d 26 (Fla. 1st
DCA 1997); Delacruz v. State, 687 So. 2d 66 (Fla. 1st DCA 1997); White v. State,
619 So. 2d 429 (Fla. 1st DCA 1993); Reed v. State, 865 So. 2d 644 (Fla. 2d DCA
2004). A probationer can be ordered to either maintain full-time employment or
provide proof of job searches. Evans v. State, 608 So. 2d 90 (Fla. 1st DCA 1992);
Miller. But without providing an unemployed probationer the reasonable
opportunity to secure employment, the trial court created an invalid condition of
probation. Probation cannot be revoked or its terms modified for violating an
invalid condition. White, 619 So. 2d at 431; Odom.
In revoking probation, the trial court also noted that appellant failed to
submit job search logs, as ordered by his probation officer. However, failure to
comply with this instruction is not a proper basis for revocation. The trial court did
not impose such a condition on appellant when he was sentenced to probation, and
a probation officer has no authority to impose additional conditions of probation,
even if the court has ordered the probationer to follow all instructions the officer
may give. Paterson v. State, 612 So. 2d 692 (Fla. 1st DCA 1993); Bishop v. State,
21 So. 3d 830 (Fla. 1st DCA 2008).
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Appellant’s second issue is that the trial court erred in finding appellant
violated several conditions of probation by not paying court costs, restitution, and
drug testing costs because the trial court did not also find appellant had an ability
to pay these costs. Appellant is correct on this issue. In Del Valle v. State, 80 So.
3d 999, 1012 (Fla. 2011), the Florida Supreme Court stated, “In probation
revocation proceedings for failure to pay a monetary obligation as a condition of
probation, the trial court must find that the defendant's failure to pay was willful—
i.e., the defendant has, or has had, the ability to pay the obligation and purposefully
did not do so.”
The State again argues that this issue has not been preserved for appellate
consideration, but revocation of probation for a failure to pay costs without the
requisite finding as to ability to pay is fundamental error. Id. at 1004; Smith v.
State, 49 So. 3d 833, 834 (Fla. 1st DCA 2010); Odom, 15 So. 3d at 678-79.
Appellant’s third issue in this appeal is the trial court’s finding that appellant
changed his residence without the consent of his probation officer. This finding by
the trial court is adequately supported by competent, substantial evidence, and
therefore, we do not disturb that finding. While there was some hearsay testimony
adduced by the State, revocation on this ground was not predicated solely on such
testimony. See Carter v. State, 82 So. 3d 993, 994–95 (Fla. 1st DCA 2011)
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(“Hearsay is admissible at a probation revocation hearing to supplement or explain
other, competent evidence, but hearsay alone will not support revocation.”).
Because we are unable to determine from the record on appeal whether the
trial court would have revoked appellant’s probation or imposed the same sentence
on the sole ground that appellant impermissibly changed his residence, we remand
the cause to the trial court to reconsider the revocation and sentence imposed.
Further, should the trial court again revoke probation following remand, the
written order should find a violation of general condition 3, and not conditions 9,
22, or 28.
AFFIRMED in part, REVERSED in part and REMANDED.
THOMAS and MARSTILLER, JJ., CONCUR.
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