DAVELL KAVON KNIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2016-03-04
No. 5D15-2028
PALMER and ORFINGER, JJ,, concur.
187 So. 3d 307 Florida District Court of Appeal, Fifth District (2016) Positive Treatment
Cited by 13 cases

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Synopsis

Davell Knight appealed the revocation of his probation for possessing a firearm as a convicted felon. Knight claimed a necessity defense, arguing the firearm possession was justified to protect his family from armed intruders. The court affirmed the revocation, finding the trial court did not abuse its discretion in determining Knight failed to establish the necessity defense by the greater weight of the evidence.


Holding

The trial court did not abuse its discretion in revoking Knight's probation because competent substantial evidence supports the finding that Knight willfully violated probation. The trial court properly found that Knight failed to establish the first three elements of the necessity defense by the greater weight of the evidence.


Headnotes

[1] The State bears the burden to prove by a preponderance of the evidence that a defendant willfully and substantially violated a condition of probation.

[2] The necessity defense requires that the defendant reasonably believed their action was necessary to avoid an imminent threat of death or serious bodily injury, did not re…

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Key Quotes

“the defendant reasonably believed 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”

Establishes the five elements required to successfully assert the necessity defense in Florida

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Facts & Procedural History

Knight was placed on a two-year probation term following a guilty plea to robbery by sudden snatching. Approximately three months later, Knight was ch…

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Opinion of the Court
LAMBERT, J.

LAMBERT, J.

Appellant, Davell Kavon Knight (“Knight”), appeals an order revoking his *309probation 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 Baliten 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(l)(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.

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 DGA 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 *310a 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 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 1957))). 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 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 qr 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).

*311AFFIRMED; REMANDED for entry of proper order.

PALMER and ORFINGER, JJ,, concur.


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Citator

Cited By (11 total)

  • Mangini v. State, 302 So. 3d 1058 (Fla. 5th DCA 2020)
    …So. 3d 349, 352 (Fla. 5th DCA 2015). “At a violation of probation [hearing], ‘[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.’” Knight v. State, 187 So. 3d 307, 309 (Fla. 5th DCA 2016) (second alteration in original) (quoting Limbaugh v. State, 16 So. 3d 954, 955 (Fla. 5th DCA 2009)). “A trial court’s determination that a probationer willfully and substantially 2 violated a term or condition of [her] proba…
  • Prentice Stringfield v. State, 254 So. 3d 1127 (Fla. 5th DCA 2018)
    …eater weight of the evidence." Stanley v. State , 922 So. 2d 411, 413-14 (Fla. 5th DCA 2006). A lower [*1128] court's finding of a willful and substantial violation of probation must be supported by competent, substantial evidence. Knight v. State , 187 So. 3d 307, 310 (Fla. 5th DCA 2016). To prove the crime of driving with a suspended license, the State must establish three elements: (1) the defendant's driver's license was suspended at the relevant time, (2) the defendant's knowledge of the license suspensi…
  • Faulstick v. State, 333 So. 3d 797 (Fla. 5th DCA 2022)
    …o. 3d 800, 802 (Fla. 4th DCA 2015)). “At a violation of probation [hearing], ‘[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.’” Knight v. State, 187 So. 3d 307, 309 (Fla. 5th DCA 2016) (second alteration in original) (quoting Limbaugh v. State, 16 So. 3d 954, 955 (Fla. 5th DCA 2009)). “A trial court's determination that a probationer willfully and 4 substantially violated a term or condition of [her] proba…

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