Opinion
1D2022-3499
10-02-2024
Jose Enrique Santos, Appellant, v. State of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Christina Piotrowski, Assistant Attorney General, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Bay County. Brantley S. Clark, Jr., Judge.
Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Christina Piotrowski, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM
AFFIRMED.
M.K. THOMAS and TANENBAUM, JJ., concur; B.L. THOMAS, J., concurs with opinion.
B.L. THOMAS, J., concurring.
Appellant pleaded to the charge of lewd and lascivious conduct under section 800.04(6)(a)-(b), Florida Statutes, a second-degree felony punishable by up to fifteen years in state prison. The charge was based on Appellant's conduct where he swam under water and molested a young girl in a pool. The young girl was traumatized and asked her mother to take her out of the pool and "be wrapped up in a blanket like a baby."
Appellant fled out of state but was arrested and returned to Florida. He then pleaded guilty to the charge.
The court adjudicated him guilty and sentenced him to two years in prison with 160 days of jail time credit, followed by ten years of sex offender probation. Three days later, the court issued its order of sex offender probation for Santos.
Before the probation violation at issue here occurred, Appellant violated his probation by refusing to allow his probation officer to enter Appellant's home. For that violation, Appellant was sentenced to time served and reinstated to probation.
The basis of this probation violation was the requirement that Appellant submit to electronic monitoring ("e-monitoring"). See § 947.1405(10), Fla. Stat. ("Effective for a releasee whose crime was committed on or after September 1, 2005, in violation of chapter 794, s. 800.04(4), (5), or (6), . . . and the unlawful activity involved a victim who was 15 years of age or younger and the offender is 18 years of age or older or for a releasee who is designated as a sexual predator pursuant to s. 775.21, . . . the commission must order electronic monitoring for the duration of the releasee's supervision."). The Legislature has defined an emonitoring device as "any device that is used to track the location of a person." § 843.23(1), Fla. Stat. It is a crime to "intentionally and without authority: (a) [r]emove, destroy, alter, tamper with, damage, or circumvent the operation of an electronic monitoring device that must be worn or used by that person or another person pursuant to a court order"; or (b) solicit another individual to remove an e-monitoring device required to be worn by court order. § 843.23(2), Fla. Stat. (emphasis added). In Florida, this violation is a third-degree felony. § 843.23(3).
The Legislature has found that "the population of offenders released from state prison into the community who meet the conditional release criteria poses the greatest threat to the public safety of the groups of offenders under community supervision." § 947.1405(8), Fla. Stat. "[T]he Department of Corrections is to provide intensive supervision by experienced correctional probation officers to conditional release offenders." Id. (emphasis added).
Appellant violated his conditional release.
In the violation affidavit, Appellant's probation officer stated that he "refused to submit to electronic monitoring, to wit: the offender generated a bracelet gone alarm for approximately 49 minutes." The officer noted that this was Appellant's second violation of probation and recommended that his probation be revoked and that the court should sentence Appellant to the Department of Corrections "for a time deemed appropriate by the court."
"[P]robation is a matter of grace," rather than a right, and as such, the court need not find "formal conviction of a crime" to revoke an offender's probation if that is not required by the order. See State ex rel. Roberts v. Cochran, 140 So.2d 597, 599 (Fla. 1962).
In this case, the facts at hearing demonstrated that Appellant's e-monitoring device consisted of an "RTC," a device similar to a cell phone, and a case to carry the RTC on the outside of his pants, and an ankle monitor. In order to comply with his required supervision, that is, to ensure that the device did not trigger the alarm, the RTC and ankle monitor had to be within a certain range of each other. In addition, Appellant was specifically instructed that:
You will place the tracking device in an area that is unobstructed. The tracking device cannot be covered in containers, lockers, trunks, et cetera or hidden under clothing, car seats, purses, briefcases, tote bags or backpacks, et cetera The tracking device must be carried only in the approved carrying case supplied by your probation officer unless otherwise directed.
The court conducted a revocation hearing. Appellant denied he willfully violated his probation.
On the date of the violation, Appellant wore his e-monitoring device to a Lowes, but placed the RTC in his pocket instead of wearing it in the provided carrying case as required by his supervision. He had been instructed not to wear the RTC in his pockets. Appellant lost the RTC part of the device, which triggered the alarm. And while Appellant began to look for it briefly when he realized it was lost, he ate lunch.
This was not the first time Appellant had caused the device to trigger an alarm. The probation officer testified that this had occurred several other times for an unknown length of time. All probationers wearing this equipment are allowed a three-minute "grace period" when an alarm signal is received, in which case no violation is filed. In addition, during this grace period when an alarm is received, the Department's contractor attempts to contact the probationer for up to eight minutes, at which time the probation officer is notified when no response is received from the supervised probationer.
Because the equipment was not properly worn by Appellant, and he lost it, the alarm sent a signal. A probation officer then was notified by Lowe's that the RTC was with store security. The probation officer travelled to the store and walked around to attempt to "clear the alarm," by somehow walking close enough to Appellant. It worked and Appellant was located and was instructed, again, to correctly wear the equipment.
On direct examination Appellant admitted he wore the equipment in the pocket of his shorts. After he realized he had lost the monitoring equipment, he went to eat lunch for twenty minutes. He claimed that he could not wear the equipment properly because it was too heavy, so he simply disregarded the requirement that he wear this electronic monitoring equipment in a manner to ensure that it did not send an alarm to the Department of Corrections. On cross-examination he testified it was simply inconvenient to comply with the requirement to wear the RTC on his belt. He conceded he had read the requirements but just did not comply with the instructions. Appellant also testified that when he returned to Lowe's, it was to meet his boss, not to continue searching for the equipment.
Appellant argued he did not willfully violate his probation by improperly wearing the equipment. The court disagreed, stating that:
I believe it's more than a mere accident that he put it in a place where it was not secure, where it could fall out of his pocket, by his own testimony, that what he was wearing could not support the case that it was supposed to be carried in, that it was something that would fall out of a pocket.
I agree that we must affirm as this record supports the trial court's decision to violate Appellant's probation.
In reviewing an allegation that a defendant violated his or her probation, "[t]rial courts must consider each violation on a case-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence." State v. Carter, 835 So.2d 259, 261 (Fla. 2002) (emphasis added). As this court has stated in probation-revocation case involving the failure to file a single monthly report:
Revocation of probation orders are reviewed under an abuse of discretion standard. Blackshear v. State, 838 So.2d 1228, 1229 (Fla. 1st DCA 2003). "[F]ailure to file a single monthly report may, in certain circumstances, justify probation revocation if such failure is willful and substantial and supported by the greater weight of the evidence." State v. Carter, 835 So.2d 259, 261 (Fla. 2002) (citing Hightower v. State, 529 So.2d 726 (Fla. 2d DCA 1988)). Although the supreme court has explained that there may be circumstances in which revoking an appellant's probation based on failure to file a single report would be "patently unfair," it would not be unfair based on the circumstances here. See id. at 262. Appellant failed to complete his report by the assigned date and did not attempt to file it shortly thereafter. In addition, he did not inform his probation officer of a
transportation problem or attempt to explain the situation. Although Appellant testified that he turned himself in because he knew he would be violated, he waited two weeks before doing so; therefore, the trial court did not abuse its discretion in finding that Appellant willfully and substantially violated his probation when he failed to file the monthly report.Robinson v. State, 940 So.2d 516, 517-18 (Fla. 1st DCA 2006).
Here the trial court did not abuse its discretion in finding the Appellant's violation to be willful. And there is no argument that he did not know that he was required to wear the equipment outside his clothing; he just made a unilateral decision that it was inconvenient.
The court granted Appellant the grace of probation. He violated the probation was reinstated. He then violated it again with this willful and substantial disregard of his responsibility to maintain proper electronic monitoring. In the 45-49 minutes that the Department of Corrections did not know his whereabouts Appellant could have committed a crime. Probationers are not entitled to endanger public safety by violating the requirements of electronic monitoring.
Thus, I concur in affirming the order of revocation and sentence.