Opinion
Case No. 5D21-0600
02-11-2022
Jeffery Lynn FAULSTICK, Appellant, v. STATE of Florida, Appellee.
Matthew J. Metz, Public Defender, and Joseph Chloupek, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
Matthew J. Metz, Public Defender, and Joseph Chloupek, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
WOZNIAK, J.
Jeffrey Lynn Faulstick appeals the order revoking his probation and sentencing him to sixty months’ incarceration. We affirm the trial court's ruling that Faulstick failed to advance a prima facie claim of self-defense as to new battery charges that the State alleged constituted a probation violation. We also affirm the trial court's finding that Faulstick had violated probation by calling the victim from jail in violation of a no-contact order entered at first appearance. However, because one of the bases for revocation was unsupported and another differed from the basis alleged by the State, we must reverse and remand to the trial court to determine whether it would revoke probation and impose the same sentence without consideration of the unsupported ground.
In 2019, Faulstick was charged with domestic battery–second offense, a third-degree felony, for striking Ms. Talia Powers. Pursuant to a negotiated plea, Faulstick pled guilty and was sentenced to 200 days in jail, with credit for 199 days served, followed by twenty-four months’ probation. Condition 5 of his probation required that he "live without violating any law." Special Condition 18 required successful completion of the Batterer's Intervention Program within sixty days, and Special Condition 28 required "peaceful contact with victim."
Fewer than four months after the conditions were imposed, Faulstick was arrested for felony battery and domestic battery by strangulation for allegedly slapping and choking Ms. Powers. The State filed several iterations of the affidavit of probation violation, ultimately alleging in the Second Amended Affidavit that Faulstick committed three violations of Condition 5 by (1) being arrested for domestic battery by strangulation, (2) being arrested for battery, and (3) violating a no-contact order when he phoned Ms. Powers from jail; one violation of Special Condition 18 by failing to undergo the Batterer's Intervention "evaluation"; and one violation of Special Condition 28 by being arrested for battery on Ms. Powers.
It appears the parties proceeded on the assumption that the trial court had initially ordered Faulstick to enroll and proceed with an initial evaluation in the Batterers’ Intervention Program, not complete the entire program, within sixty days. This would comply with the statutory requirement of a twenty-nine-week Batterers’ Intervention Program. See § 741.325(1)(c), Fla. Stat. (2019). Nevertheless, the actual probation order required completion of the Batterers’ Intervention Program within sixty days. Faulstick did not raise this discrepancy, however, and we thus need not address it.
Following the hearing on the Second Amended Affidavit, the court rendered an amended revocation order finding that Faulstick had violated Condition 5 in the three ways the State alleged. These findings are supported by the evidence and affirmed. The trial court also found that Faulstick had violated Special Condition 18 by failing to undergo a Batterer's Intervention "evaluation" and Special Condition 28 by having contact with Ms. Powers when ordered not to have contact. Faulstick was sentenced to sixty months in the Department of Corrections with credit for 602 days already served.
Prior to the hearing, Faulstick filed an unsworn Motion to Dismiss the Second Amended Affidavit as to the violation allegations based on his arrest for battery because he acted in self-defense and was thus "immune from prosecution"—a Stand Your Ground claim. The motion was argued at the hearing by agreement. The trial court correctly concluded that the Motion to Dismiss should have been sworn and that Faulstick failed to demonstrate a prima facie Stand Your Ground claim in his Motion to Dismiss.
On appeal, Faulstick argues that the State failed to prove, by a preponderance of the evidence, that he willfully and substantially violated Special Condition 18 (Batterer's Intervention Condition) and Special Condition 28 (Peaceful Contact Condition). Our standard of review for a violation of probation determination is abuse of discretion. Gauthier v. State, 949 So. 2d 326, 326 (Fla. 5th DCA 2007). The court's ruling on the admissibility of evidence at a violation of probation hearing is also subject to the abuse of discretion standard of review, "but the court's discretion is limited by the rules of evidence and the applicable case law." Poole v. State, 284 So. 3d 604, 607 (Fla. 5th DCA 2019) (quoting Horwitz v. State, 189 So. 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 substantially violated a term or condition of [her] probation must be supported by competent, substantial
evidence." Laing v. State, 200 So. 3d 166, 168 (Fla. 5th DCA 2016).
Mangini v. State, 302 So. 3d 1058, 1059 (Fla. 5th DCA 2020) (footnote omitted).
We first analyze the trial court's finding that Faulstick violated Special Condition 18 (Batterer's Intervention Condition). The Second Amended Affidavit alleged that Faulstick had "fail[ed] to undergo a Batterer's Intervention evaluation ...." On appeal, Faulstick argues that the only evidence presented was Faulstick's testimony that he was in a hospital emergency room with a work-related injury on the date he was to attend the program evaluation, which was insufficient to sustain the probation revocation on this ground. We agree.
Faulstick's unrebutted testimony was that he attempted, upon his release from the emergency room, to make arrangements to attend the evaluation, but was told not to come "because of Covid." The record contains no evidence of the time of day that Faulstick was supposed to attend the Batterer's Intervention evaluation, and thus it cannot be determined that his morning emergency room visit did not overlap with the appointment time. In the absence of evidence that Faulstick's failure to attend was willful, the trial court erred in concluding the State had demonstrated a willful and substantial violation of Special Condition 18.
We next analyze the trial court's finding of a probation violation based on Special Condition 28 (Peaceful Contact Condition). The Second Amended Affidavit alleged Faulstick violated this condition by "being arrested for battery against the victim." In contrast to the act alleged, the trial court orally announced its finding that Faulstick violated Special Condition 28 by placing three jailhouse calls to Ms. Powers, which calls, we note, also served as the basis for the third violation of Condition 5. Consistent with the court's oral statement but in vaguer fashion, the court's written finding was that Faulstick had "contact with the victim when ordered not to have contact." Clearly, the violation of the no-contact order by making jailhouse phone calls was not the basis the State alleged for the violation of Special Condition 28, but Faulstick does not complain thereof. Rather, Faulstick focuses on the evidence of his jailhouse phone calls to Ms. Powers and argues that the identity of the calls’ recipient was never established; thus, no evidence demonstrated he had violated Special Condition 28.
We find no error in the trial court's ruling that the content of the recorded jailhouse calls and the surrounding circumstances demonstrated that Ms. Powers received the calls. As such, competent evidence demonstrated that Faulstick violated a condition of probation by making these calls—it was just not Special Condition 28. Although the court found that the jailhouse calls violated both Condition 5 and Special Condition 28, the State in the Second Amended Affidavit only cited the calls as a violation of Condition 5. Thus, the calls could properly be considered only with respect to Condition 5, and because competent, substantial evidence supports the trial court's finding that Ms. Powers was the recipient of the calls, we affirm the finding of probation violation based on the third alleged violation of Condition 5.
Certainly, the facts and circumstances sufficiently established that Ms. Powers was the recipient of Faulstick's jailhouse calls. The calls were made to the phone number Faulstick had provided for Ms. Powers and the content of the calls revealed that Ms. Powers was the recipient. Further, the officer supervising the calls had the video recordings of the iPad calls between Faulstick and Ms. Powers and identified Ms. Powers from her driver's license. The officer also compared the voice on the recorded video calls with the audio calls and testified it was Ms. Powers’ voice on both types of recordings. Finally, the officer had called Ms. Powers and she had confirmed receipt of calls from Faulstick.
Regardless of the fact that the jailhouse calls do not support a finding of probation violation based on Special Condition 28, the court's battery-related factual findings made in support of its conclusion as to Condition 5 also support a finding of violation of Special Condition 28. Thus, on remand, the trial court may, if appropriate, correct the factual statement originally attributed to Special Condition 28.
In sum, competent, substantial evidence supports the trial court's factual findings that Faulstick violated his probation (1) by being arrested on the new battery offenses, constituting violations of Condition 5 and the alleged violation of Special Condition 28 (albeit without having been correctly correlated thereto), and (2) by making jailhouse calls to Ms. Powers, constituting a violation of Condition 5 (violating the no-contact order). Thus, we affirm these findings. However, we reverse the amended revocation order insofar as it found Faulstick willfully violated Special Condition 18 as that finding was not supported by the evidence.
Because the record before us does not inform one way or the other whether revocation of probation followed by a sixty-month sentence would have been imposed based solely on the properly-found violations, our remand includes directions to the trial court to consider whether probation revocation and the sixty-month sentence imposed are still appropriate based solely on the appropriately-found violations. See Niemi v. State, 284 So. 3d 1143, 1145–46 (Fla. 5th DCA 2019) (holding that where it is unclear from record whether court would have revoked probation and imposed same sentence based on remaining violations, appellate court must reverse and remand for determination whether properly-substantiated violations warrant revocation of probation and/or imposition of same prison sentence (citation omitted)). We express no opinion as to this issue. If the trial court determines probation revocation is appropriate, the order reflecting this determination should reflect the correct condition numbers and the factual findings that support their violation. See Miller v. State, 328 So. 3d 1115 (Fla. 2d DCA 2021) (remanding for correction of written revocation order where trial court cited wrong condition numbers).
AFFIRMED in part; REVERSED in part; remanded with instructions.
EVANDER and HARRIS, JJ., concur.