Opinion
Case No. 2D19-1591
01-15-2021
Joshua Ricardo BELL, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
Joshua Ricardo Bell appeals the order modifying the conditions of his community control. Because we conclude that the modification is an enhancement that was improperly imposed in the absence of a violation of Bell's community control, we reverse.
Bell pled guilty to delivering a controlled substance within 1000 feet of a church, possessing cocaine, and simple battery. The trial court sentenced him to two years' community control followed by three years' probation. While Bell was serving his sentence, his community control officer filed an affidavit alleging that he had violated condition (16) by missing an anger management class. Condition (16) requires Bell to "remain confined to [his] approved residence except for one half hour before and after" any activity approved by his community control officer.
At the violation hearing, Bell's community control officer testified that he had gone to Bell's anger management class shortly before it ended and had learned that Bell had missed it. Earlier that day, the officer had called Bell, but the call had gone to voicemail. When Bell returned the officer's call later that day, Bell had explained that he had missed the class because he had been unable to arrange childcare for his three-month-old son and had had to stay home with him. Both Bell and the officer testified that the class had originally been scheduled on Saturdays, but it had been changed to Fridays based upon a change of instructor. Bell testified that he has made up the class he had missed and that his son now attends daycare.
At the conclusion of the evidence, the State argued that Bell had violated his community control by not being "physically present in his class." The trial court agreed, reasoning that condition (16) extends to any failure to be present at "public service work or other activities approved by the officer." The court stated that it was modifying Bell's community control from "community control I to community control II," explaining:
We're going to modify your case to CC-2 because I don't play hide and go seek. I don't go looking for people. I don't want this officer to have to leave his daily schedule to go search [for] you at classes. So all I'm doing is changing CC-1 to CC-2, okay? I'm not even going to add ten hours [of community service] on you. I'm just going to change the way it's going to be because we're not going to go hunt you down anymore. I'm not -- he's not going to have to worry about going to classes and checking on you.
Thereafter, the trial court entered a written order of modification, providing that "[Bell] is now on Community Control II." In the order, the trial court noted that it had entered the modification based on its authority to modify the terms of community control at any time. Bell timely appeals that order.
Although section 948.03 previously authorized a trial court to rescind or modify either probation or community control at any time, see, e.g., § 948.03(6), Fla. Stat. (2003), the authority to rescind or modify community control at any time is now codified in section 948.101, see § 948.101(2), Fla. Stat. (2019).
A trial court may, at any time, modify the terms it has imposed upon an offender placed into community control. See § 948.101(2), Fla. Stat. (2019). Absent a violation of community control, however, the court cannot enhance the terms because doing so violates the prohibition against double jeopardy. See Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994). We review for competent substantial evidence a court's finding of a violation. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013).
The test for whether the modification of the conditions of community control is an improper enhancement "turns on whether the change is more restrictive than the original condition." See Blair v. State, 805 So. 2d 873, 877 (Fla. 2d DCA 2001) (citing Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994) ). We have no trouble concluding that the modification to "community control II," i.e., ordering supervision by means of an electronic monitoring system, see § 948.11(2), constituted an enhancement. An offender on community control who is placed under supervision by means of an electronic monitoring system must pay the Florida Department of Corrections for the electronic monitoring services. See § 948.11(5). Accordingly, the added conditions require Bell to be electronically monitored and to pay the costs of electronic monitoring. Because the original community control order did not include either requirement, the order of modification includes conditions that are more restrictive than those imposed by the original order.
--------
On appeal, Bell argues that competent substantial evidence does not support the trial court's finding that he violated condition (16). Although acknowledging that the evidence established that he had failed to attend an anger management class, Bell argues that such a failure does not amount to a violation of condition (16), which requires him, with certain exceptions, to stay home.
We agree. Contrary to the trial court's reasoning, an offender does not violate condition (16) by failing to be present at "public service work or other activities approved by the officer" because that condition does not require the offender to attend that work or those activities. Rather, it requires only that Bell "remain confined to [his] approved residence except for one half hour before and after" any activity approved by his community control officer. Therefore, pursuant to the exception to the condition, Bell would have been authorized to be away from his home to attend the anger management class, but his failure to attend the class did not violate the condition when the evidence not only did not establish that he had been away from his home but indisputably established the opposite.
Moreover, the State did not allege a violation of any condition of community control that would have required Bell to attend that specific class. Although Bell acknowledged at the violation hearing that a special condition of community control required him to complete anger management treatment, the State did not allege, much less prove, that Bell had failed to complete the requisite treatment by missing that class, which he later made up. Cf. Melecio v. State, 662 So. 2d 408, 410 (Fla. 1st DCA 1995) (concluding that the trial court erred in revoking probation based on the defendant's failure to complete an anger management course where the "order failed to specify a time period in which the anger management course requirement was to be satisfied" and "the term of community control had not expired").
Accordingly, although the court and the community control officer were understandably frustrated that Bell was not at his class, Bell did not violate condition (16) by remaining at home. We therefore reverse the order modifying Bell's community control and remand for the circuit court to reinstate the previous order of community control.
Reversed and remanded.
NORTHCUTT and SMITH, JJ., Concur.