TONEILLE BLAIR GOMEZ
v.
STATE OF FLORIDA
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The appellate court reversed the revocation of a defendant's community control, finding that the condition under which she was found to be in violation did not mandate attendance at a Narcotics Anonymous meeting. The court held that the condition only permitted her to be away from her residence for approved activities, not that she was required to attend them.
No, the condition did not mandate attendance at approved activities. It merely listed the only places outside the residence where the defendant was permitted to be.
[1] A condition of community control or probation that lists approved activities is permissive and authorizes but does not require an offender to attend those activities.
[2] It is fundamental error to revoke probation or community control based on an offender's failure to perform an act that the conditions do not require.
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Join FLexlaw to unlock all legal intelligence“But the terms of Gomez's community control did not require her attendance at the meeting.”
Establishes the core finding of the appellate court.
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Join FLexlaw to unlock all legal intelligenceToneille Gomez's community control was revoked by the circuit court for failing to attend a Narcotics Anonymous (NA) meeting. The State alleged this v…
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NORTHCUTT, Judge. At the State's behest, the circuit court revoked Toneille Gomez's community control for her failure to attend a Narcotics Anonymous (NA) meeting. But the terms of Gomez's community control did not require her attendance at the meeting. We therefore reverse the order revoking community control.
The violation at issue concerned condition (16) of the community control portion of the order placing Gomez on community control and drug offender probation. This condition stated: "You will remain confined to your approved residence except for one half hour before and after your approved employment, public service work, or any other special activities approved by your officer." The State alleged that Gomez violated this condition by being away from her approved NA meeting on March 20, 2019, and the court found that Gomez's failure to attend the meeting was a willful violation of the condition.
Gomez now argues for the first time on appeal that, in fact, this condition did not require her to attend NA meetings. She is correct. Condition (16) directed Gomez to "remain confined to [her] approved residence" unless she was attending work, community service, or some other activity approved by her officer. Nowhere in this condition was there any language declaring that Gomez must attend these activities. Rather, the condition provided that these activities were the only places other than her home that she was allowed to be. In other words, it was a list of permitted activities rather than a list of mandated activities. See Bell v. State, 313 So. 3d 841, 843 (Fla. 2d DCA 2021) (holding that condition (16) authorizes but does not require an offender to attend an approved activity).
Thus, notwithstanding Gomez's failure to preserve this argument below, it was fundamental error to revoke Gomez's community control for missing a meeting that her community control conditions did not require her to attend. See Odom v. State, 15 So. 3d 672, 678 (Fla. 1st DCA 2009) (holding that it is fundamental error to revoke probation based on the failure to perform an act that the conditions of probation do not require). We therefore reverse the revocation order and remand for the circuit court to reinstate Gomez's community control.
Reversed and remanded. BLACK and SMITH, JJ., Concur. Opinion subject to revision prior to official publication.