Opinion
Case No. 2D19-3576
01-06-2021
Roger Eugene ALGIERE, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and James Hellickson, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and James Hellickson, Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Judge.
Roger Eugene Algiere appeals the order revoking his sexual offender probation for two counts of attempted sexual battery (victim less than twelve years of age) and two counts of sexual battery (familial authority) and the resulting concurrent sentences of forty years in prison with credit for time served and all prior prison credit. As to Algiere's argument that the State failed to prove a willful and substantial violation of probation (VOP) for unsupervised contact with a child, we affirm without discussion the revocation and sentences. However, we remand for the trial court to enter an amended revocation order reflecting that Algiere violated condition 71, not condition 19, of his probation.
An amended VOP affidavit alleged that Algiere violated condition 19 of his probation by having unsupervised contact with a thirteen-year-old child, Y.R. The revocation order lists condition 19 as the condition violated. But condition 19 of the supervision order states, "You will participate in self-improvement programs as determined by the Court or your officer." At the revocation hearing, Algiere's probation officer testified that the condition prohibiting contact with children was condition 71 and read it into the record. Algiere did not object to the testimony as to his violation of condition 71, and he presented a defense to the violation. The court announced that it found Algiere in violation "for the unsupervised contact with the child," but the court did not state the condition violated. Algiere did not object to the court's failure to identify the condition that he had violated or the fact that the amended VOP affidavit alleged a violation of condition 19 rather than condition 71.
We reject Algiere's challenge as to the State's proof of a willful and substantial violation of probation. Algiere had notice of the conduct alleged of unsupervised contact with Y.R., a child, and defended the violation at a hearing. Under similar circumstances, the allegation of a different condition did not preclude the revocation of probation based on the condition that the State actually proved:
When a defendant's probation is revoked based on an affidavit which alleges a violation with less-than-exacting precision but which nonetheless puts the defendant on notice of the misconduct of which he is accused, as is the case here, the deficiency is considered harmless so long as the State offers sufficient evidence that the defendant is guilty of the conduct (although not necessarily the condition) actually alleged in the affidavit.
Quijano v. State, 270 So. 3d 549, 551 (Fla. 2d DCA 2019). In Quijano, the State alleged a violation of condition 21 of Quijano's sex offender probation for possessing pornographic material, and the trial court found a violation of condition 21. Id. at 550. On appeal, Quijano argued that the evidence failed to show that the pornographic material was related to his pattern of deviant behavior, a requirement of condition 21. Id. The State asserted that the evidence proved a violation of condition 33 "which prohibit[ed] him from possessing pornographic material at all." Id.
This court determined that "Quijano had notice of the conduct alleged to violate his probation, his ability to prepare a defense to those charges was not prejudiced, and the State offered sufficient evidence to prove that he was guilty of the conduct alleged." Id. at 552. This court affirmed the revocation of probation but remanded for entry of a revocation order showing a violation of condition 33 rather than condition 21. Id. at 552-53.
In addition, in Washington v. State, 228 So. 3d 707 (Fla. 2d DCA 2017), this court affirmed a revocation when the wrong condition number was alleged. There, the affidavit alleged that Washington violated condition 15 for failing to remain at his approved residence, but it was condition 16 that required Washington to remain at his approved residence. Id. at 707-08. The State established at the hearing that Washington was away from his approved residence without permission, and the trial court found him in violation on that basis, a condition 16 violation. Id. at 708. This court affirmed a revocation of supervision but remanded for the trial court to correct the revocation order to show "that Washington was actually found in violation of condition 16." Id.
Here, Algiere was aware that he was alleged to have had unsupervised contact with a child, Y.R. Although the amended affidavit alleged unsupervised contact with a child under the age of eighteen and condition 71 prohibited unsupervised contact with any child under the age of sixteen, Y.R. was well under the age of sixteen, and it was alleged in the affidavit that she was thirteen. Algiere defended the violation, calling his brother to testify as a witness. The probation officer plainly read condition 71 at the revocation hearing, and Algiere did not object. The trial court found Algiere in violation based on the unsupervised contact with Y.R.
Under these circumstances, we affirm the revocation of probation and resulting sentences and remand for entry of an amended revocation order to reflect a violation of condition 71 instead of condition 19. See Quijano, 270 So. 3d at 550. We also direct that the order be amended on remand to the extent that it inaccurately states that Algiere admitted the violation. See Torres v. State, 244 So. 3d 417, 418 (Fla. 2d DCA 2018).
Affirmed and remanded with directions.
VILLANTI and SLEET, JJ., Concur.