MICHEAL WAYNE LOVETT JR.

v.

STATE OF FLORIDA

PER CURIAM.

After conducting a hearing, the trial court found Appellant guilty of violating four conditions of his probation previously imposed in two underlying felony cases. The court sentenced Appellant to five years in prison for each of the two cases, to run concurrently.

Appellant challenges his guilt as to three conditions of probation: condition 3, that he must get permission from his probation officer before changing his residence or leaving the county; condition 10, that he must pay court costs and restitution; and condition 27, that he must make those payments regularly or perform community service as an alternative. Appellant does not challenge his guilt as to condition 5, refraining from committing new law violations.

The State concedes error as to Appellant’s guilt of condition 10, because there was no evidence of ability to pay. We find this concession well taken, and reverse it without further discussion.

We also hold that the trial court erred in finding Appellant guilty of violating condition 3 for leaving his authorized address. Violations of conditions 3 and 10 should be stricken from Appellant’s record. However, we affirm as to the violation of condition 27. Because we are unable to determine with certainty that the trial court would have imposed the same sentence for violations of conditions 5 and 27, we remand for a new sentencing hearing.

Standard of Review.

We review a trial court’s revocation of probation under the abuse-of-discretion standard. Blackshear v. State, 838 So. 2d 1228, 1229 (Fla. 1st DCA 2003). For probation to be revoked, a violation must be found to be willful and substantial. Id. Such a finding must be supported by competent, substantial evidence. Laing v. State, 200 So. 3d 166, 168 (Fla. 5th DCA 2016).

Violation of Condition 3, Leaving Authorized Address.

Appellant’s probation had been transferred to Delaware, and he lived there with his mother. An incident occurred there that resulted in law enforcement’s forcibly removing Appellant from his mother’s residence and arresting him for resisting arrest. He testified that a Delaware court ordered him not to return to his mother’s residence, so when his probation officer tried to find him there, he was not there and could not go back. On these facts, Appellant’s absence from his approved address was not “willful” in the sense required to support a violation of condition 3, even though his own actions resulted in his removal. See Marchan v. State, 192 So. 3d 658, 660 (Fla. 2d DCA 2016) (“[W]here a defendant is physically prevented from complying [with the terms of his probation] due to incarceration . . . the failure to comply is not willful.”); Boyington v. State, 70 So. 3d 631, 631-32 (Fla. 1st DCA 2011) (holding probationer’s change of address without prior permission was not willful where the probationer’s change of address was the result of his arrest and incarceration in another jurisdiction). We reverse the judgment on appeal as to the violation of condition 3.

Violation of Condition 27, Community Service.

Appellant admitted that he did not perform any community service. This community service condition was framed as a mandatory obligation in the event court costs were not paid, and it is undisputed that Appellant made no payments toward the court costs. Therefore, the evidence before the trial court supported the determination that Appellant violated condition 27. Cf. Banks v. State, 262 So. 3d 876, 877–78 (Fla. 1st DCA 2019) (holding that an alternative probation condition providing that a defendant “may” perform community service in lieu of making payments does not impose an obligation to perform community service when the defendant fails to make payments).

Conclusion.

We affirm as to conditions 5 and 27 of Appellant’s probation. We reverse as to conditions 3 and 10, and remand for these judgments to be stricken from Appellant’s record.

The remedy depends on whether it is “clear from the record” that the trial court would have imposed the same five-year prison sentence for violations of only conditions 5 and 27. See Kimmons v. State, 267 So. 3d 1082, 1084 (Fla. 1st DCA 2019) (remanding for resentencing where it was “not clear from the record” whether the court would have imposed the same sentence based on the one remaining VOP that was not stricken); Williams v. State, 165 So. 3d 870, 870 (Fla. 1st DCA 2015) (“Because we are unable to determine whether the trial court would have imposed the same sentence for the other violation found by the court, we remand for further proceedings.”).

The State recommended 18 months’ imprisonment, whereas the defense requested a mere return to probation. The trial court found Mr. Lovett not credible in some respects, and stated it was imposing the five-year sentences because it did not think Mr. Lovett was “a good candidate for me to put back on supervision.” While this statement supports imprisonment as the remedy, it is inconclusive as to whether the trial court would have imposed the same sentence without the two violations we have instructed the court to strike. We therefore remand for a new sentencing hearing with Mr. Lovett present.

AFFIRMED in part; REVERSED and REMANDED in part. OSTERHAUS, KELSEY, and JAY, JJ., concur. _____________________________