Rousey v. State ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MARK ROUSEY, DC# H12058, )
)
Appellant, )
)
v. ) Case No. 2D16-4186
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed August 30, 2017.
Appeal from the Circuit Court for Polk
County, Glenn T. Shelby, Judge.
Howard L. Dimmig, II, Public Defender, and
Kevin Briggs, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cerese Crawford Taylor,
Assistant Attorney General, Tampa, for
Appellee.
SLEET, Judge.
Mark Rousey appeals the order revoking his community control in case
numbers CF00-146 and CF13-5307. Because the trial court's finding that Rousey
committed a willful and substantial violation of his community control was not supported
by competent substantial evidence, we reverse.
Rousey was convicted of lewd or lascivious battery and lewd or lascivious
molestation and was originally sentenced to concurrent terms of ten years' prison
followed by five years' probation in case number CF00-146. In 2013, Rousey pleaded
guilty to committing the new law offense of failing to register as a sex offender in
exchange for five years' probation in case number CF13-5307. On November 20, 2015,
the trial court revoked his probation in both case numbers and sentenced Rousey to
concurrent sentences of eighteen months' community control followed by one year of
probation on all counts. On April 21, 2016, the State filed a violation affidavit, alleging
that Rousey violated conditions sixteen and nineteen of his community control by failing
to remain confined to his approved residence and failing to follow the rules of electronic
monitoring.
At the violation hearing, Rousey's community control officer testified that
she gave Rousey permission to go to a cell phone store to repair his telephone and
instructed him to return to his home by 1:00 p.m. When Rousey had not returned home
by 1:00 pm, the monitoring center sent an alert to Rousey's monitoring device at
1:05 p.m. The community control officer unsuccessfully attempted to call Rousey on his
cell phone and sent a message to Rousey's monitoring device at about 1:41 p.m.
directing him to call her. Although Rousey acknowledged the message by pressing a
button on his monitoring device, he did not immediately call his community control
officer. The community control officer testified that Rousey's GPS monitoring records
reflected that he returned home at 1:48 p.m. and that he was at a gas station near his
home for the entire period of time he was out after 1:00 p.m.
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Rousey testified that he did not have his own transportation and had to
rely on his nephew to take him to the cell phone store. Rousey spent fifty minutes at the
cell phone store only to learn that his phone could not be repaired there and that he
would need to mail it in. After leaving the cell phone store, Rousey and his nephew
stopped for gas; Rousey testified that his community control officer had previously
indicated that he could stop for gas when needed without prior approval. Rousey
explained that his nephew was unable to restart the car after purchasing gas and that
they were stranded at the gas station for forty-six minutes. The State admitted a gas
station receipt showing that Rousey's nephew purchased gas at 1:03 p.m. Rousey
testified that neither he nor his nephew had a working phone and that he was therefore
unable to immediately call his community control officer or respond to the alert on his
monitoring equipment. When Rousey's nephew was able to start the car, the two
returned to Rousey's residence, arriving at 1:48 p.m. Rousey testified that he called his
community control officer using his stepmother's phone when he arrived home and
explained the issue to her when she made contact with him later that evening.
The State argued that Rousey willfully failed to return his community
control officer's calls and alerts and that he failed to make a good faith effort to return
home by the approved time. The trial court agreed, finding that Rousey willfully and
substantially violated condition sixteen by failing to remain confined to his approved
residence and condition nineteen by refusing to follow the rules of electronic monitoring.
The court revoked his supervision and sentenced him to fifteen years' prison for lewd or
lascivious battery and to ten years' prison followed by two years' community control and
three years' probation for lewd or lascivious molestation in case number CF00-146. The
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court sentenced him to two years' community control in case number CF13-5307.
Rousey now appeals the revocation of his community control and his sentences in both
case numbers.
"When making the decision to revoke a defendant's community control,
the trial court must determine whether the State has proven a substantial and willful
violation by the greater weight of the evidence." Hugan v. State, 190 So. 3d 210, 211
(Fla. 2d DCA 2016); see also Robinson v. State, 907 So. 2d 1284, 1286 (Fla. 2d DCA
2005); Brown v. State, 813 So. 2d 202, 203–04 (Fla. 2d DCA 2002). This court has
consistently held that a violation of supervision is willful only where the defendant fails to
make reasonable efforts to comply with the alleged violated condition. See Hicks v.
State, 890 So. 2d 459, 462 (Fla. 2d DCA 2004); Benedict v. State, 774 So. 2d 940, 941
(Fla. 2d DCA 2001); Jacobsen v. State, 536 So. 2d 373, 375 (Fla. 2d DCA 1988); Scott
v. State, 485 So. 2d 40, 41 (Fla. 2d DCA 1986). On appeal, this court reviews the trial
court's decision to revoke supervision for an abuse of discretion. Hugan, 190 So. 3d at
211.
The evidence presented at the hearing reflected that Rousey was
engaged in an approved activity at the time of his alleged violation; "[t]he only problem
was that he performed this . . . act outside the window of time in which this activity was
supposed to occur." See id. (alteration in original) (quoting Filmore v. State, 133 So. 3d
1188, 1193 (Fla. 2d DCA 2014)). The State did not dispute that Rousey was at the gas
station, that he had permission from his community control officer to stop for gas, or that
he was stranded while his nephew attempted to fix his car. And there was no evidence
that Rousey, who had permission to visit a cell phone store to fix his broken phone, had
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access to a phone from which he could call his community control officer while he was
stranded at the gas station. Rousey's failure to timely contact his community control
officer and to return home was at worst due to negligence or ineptitude; therefore, the
trial court abused its discretion in finding a willful and substantial violation of community
control. See id. at 211 ("[A] violation of probation will not be found where the violation is
due to negligence or ineptitude." (quoting Filmore, 133 So. 3d at 1193–94)); Thomas v.
State, 672 So. 2d 587, 589 (Fla. 4th DCA 1996) (reversing a revocation order when the
defendant failed to comply with his curfew because of a flat tire and explaining that the
violation was a result of his ineptitude or negligence, not "the product of a knowing and
willful act" (quoting Stevens v. State, 599 So. 2d 254, 255 (Fla. 3d DCA 1992))); see
also Boatwright v. State, 847 So. 2d 1141, 1142 (Fla. 3d DCA 2003) (reversing a
revocation order based on the defendant's five-and-a-half-hour delay returning home
from church when it was caused by his attendance at additional church activities); Hern
v. State, 747 So. 2d 1039, 1039–40 (Fla. 4th DCA 1999) (concluding that the defendant
did not willfully or substantially violate her curfew when she was thirty-five minutes late
because she missed the bus and had to walk).
Accordingly, we reverse the order of revocation and subsequent
sentences, and we remand for reinstatement of Rousey's supervisory sentences.
Reversed and remanded with instructions.
KHOUZAM and BADALAMENTI, JJ., Concur.
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