Opinion
No. 2D19-4239
06-11-2021
Toneille BLAIR GOMEZ, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Lindsay D. Turner, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Lindsay D. Turner, Assistant Attorney General, Tampa, for Appellee.
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.