PHILLIP B. DAVID, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Phillip B. David appealed the revocation of his sex offender probation after being found at a computer in a public library. The court affirmed the violation of the condition prohibiting computer access but reversed the violation of the condition prohibiting sexually explicit material, and remanded for the trial court to reconsider its sentencing decision.
The court held that the State established a violation of the condition prohibiting computer access but failed to establish a violation of the condition prohibiting sexually stimulating material. While a violation of the computer access condition alone could support revocation, the court remanded for the trial court to reconsider whether it would have imposed the same 15-year sentence based on that violation alone.
[1] A trial court has broad discretion over probation, which is a matter of grace, not right.
[2] A substantial and willful violation of probation must be established by at least a preponderance of the evidence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a substantial and willful violation must be established by at least a preponderance of evidence”
Establishes the evidentiary standard for probation violations even though probation is a matter of grace with broad trial court discretion.
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Join FLexlaw to unlock all legal intelligenceDavid was placed on sex offender probation after pleading guilty to lewd and lascivious exhibition. His probation conditions prohibited viewing pornog…
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Phillip B. David appeals the revocation of his probation. David was placed on sex offender probation after he pled guilty to lewd and lascivious exhibition. Following a hearing, the trial court revoked that probation finding that David violated two conditions of sex offender probation. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
Condition 8 of the terms of probation contained in David’s negotiated plea agreement (which was renumbered as condition 20 on his sex offender probation agreement) prohibited David from viewing, owning or possessing any obscene, pornographic or sexually stimulating material. Condition 18 of the terms of probation in the negotiated plea agreement (which was renumbered as condition 29 on his sex offender probation agreement) precluded access of the internet or “other computer services” until a risk assessment had been performed and a sex offender treatment program had been implemented.
David was alleged to have violated these conditions after he was found in a public library using a computer. He admitted at the subsequent hearing that he played computer games on the computer while at the library. He denied viewing pornography. The officers who located David in front of a computer testified that while they did not see pornography or other sexually explicit images on the monitor when they approached, they did see a box on the computer’s toolbar which read “porn” or “trannyporn.” The officers were not able to open any windows as the computer was shutting down as they approached. A subsequent forensic analysis of the computer failed to disclose past user history. At the time of his arrest at the library, appellant was found to have in his possession the addresses of several websites with sexually explicit names.
Probation is a matter of grace, and not right, and a trial court has broad discretion over probation. Adams v. State, 979 So.2d 921 (Fla.2008). Nevertheless, a substantial and willful violation must be established by at least a preponderance of evidence. See Bowman v. State, 974 So.2d 1205, 1206 (Fla. 1st DCA 2008). We agree that the State established by a preponderance of evidence that David violated condition 18 which precluded access to a computer. However, the *388State did not establish, by a preponderance of evidence, that David violated condition 8. The circumstantial evidence adduced by the State certainly suggested an intent on David’s part to view sexually stimulating material, but the evidence of record does not established that he had accomplished that intent. Accordingly, we reverse that part of the order of revocation of probation which finds a violation as to condition 8. Although a violation of condition 18 could alone support revocation, because the record does not establish that the trial court would have revoked probation and imposed a 15-year sentence on a violation of condition 18 alone, this court is required to remand for the trial court to reconsider its decision to revoke probation and to impose the same sentence. See Smith v. State, 965 So.2d 1252 (Fla. 1st DCA 2007).
AFFIRMED in part, REVERSED in part, and REMANDED.
BENTON, C.J., VAN NORTWICK and SWANSON, JJ, concur.
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Malone v. State, 146 So. 3d 155 (Fla. 1st DCA 2014)…on is to reverse the order revoking probation and remand for reconsideration, unless the record clearly demonstrates that the trial court would have revoked probation based only on the upheld revocation grounds. Id. at 1221; see also David v. State, 75 So. 3d 386, 388 (Fla. 1st DCA 2011) (“Although a violation of condition 18 could alone support revocation, because the record does not establish that the trial court would have revoked probation and imposed a 15-year sentence on a violation of condition 18 alo…
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Markas Brian Washington v. State, 215 So. 3d 202 (Fla. 1st DCA 2017)…record is not clear whether the trial court would have imposed the same sentences of five years to run consecutively based on the remaining sufficiently proven charges, we remand for reconsideration of revocation and sentencing. See Davis v. State, 75 So. 3d 386, 388 (Fla. 1st DCA 2011) (“Although a violation of condition 18 could alone support revocation, because the record does not establish that the trial court would have revoked probation and imposed a 15-year sentence on a violation of condition 18 alo…
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Cromartie v. State, 241 So. 3d 970 (Fla. 1st DCA 2018)…evoked Appellant’s probation and sentenced him to the same two years in prison had it declined to find that Appellant associated with someone engaged in criminal activity. See Reed v. State, 127 So. 3d 817, 819 (Fla. 2d DCA 2013); David v. State, 75 So. 3d 386, 387 (Fla. 1st DCA 2011). The court clearly stated it was revoking Appellant’s probation and sentencing him to two years in prison because he continued to use drugs while on probation for possessing drugs. The court never mentioned an associatio…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Adams v. State, 979 So. 2d 921 (Fla. 2008)
- Bowman v. State, 974 So. 2d 1205 (Fla. 1st DCA 2008)
- Smith v. State, 965 So. 2d 1252 (Fla. 1st DCA 2007)