America Hernandez v. State , 251 So. 3d 1012 ( 2018 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
AMERICA HERNANDEZ,
Appellant,
v. Case No. 5D17-2687
STATE OF FLORIDA,
Appellee.
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Opinion filed July 20, 2018
Appeal from the Circuit Court
for Seminole County,
Donna L. McIntosh, Judge.
James S. Purdy, Public Defender, and
Kathryn Rollison Radtke, Assistant
Public Defender, Daytona Beach, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Allison Leigh Morris,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
America Hernandez (the defendant) appeals the trial court's order revoking her
community control based on its finding that she substantially and willfully violated
conditions 3 and 9 of her community control. We affirm as to condition 9, but reverse on
condition 3 and remand for further proceedings.
The defendant was convicted on a charge of arson of a dwelling and was placed
on community control. The community control order contained a number of conditions,
including that the defendant could not change her residence without obtaining the consent
of her supervising officer (condition 3) and that she must comply with all instructions given
to her by her supervising officer (condition 9).
The defendant was charged with violating conditions 3 and 9. After holding an
evidentiary hearing on the charged violations, the trial court entered a written order,
finding that the defendant had violated condition 3 by changing residences without the
consent of her community control officer and that she had violated condition 9 by failing
to contact her community control officer the day she left her former residence. Ultimately,
the trial court sentenced the defendant to 10 years in prison with credit for time served,
and this appeal followed.
The defendant contends that there was no competent substantial evidence to
support the trial court’s finding that she willfully violated conditions 3 and 9. We agree as
to condition 3, but disagree as to condition 9.
At a revocation hearing, the State has the burden to prove by a preponderance of
the evidence that the defendant violated a condition of supervision willfully and
substantially. Knight v. State, 187 So. 3d 307, 309 (Fla. 5th DCA 2016). When a
defendant challenges the sufficiency of the State’s evidence, we review the record to
determine if competent substantial evidence supports the trial court’s finding of a willful
and substantial violation. Id.
As to condition 3, the State did not introduce any evidence that the defendant failed
to request permission to change her residence or that such permission was denied. In
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fact, the day before leaving the hotel where she resided, she apprised her community
control officer that she lacked the finances to continue staying there. In response, the
community control officer told her simply that she needed to apprise him of her new
residence. However, as to condition 9, the State’s evidence was sufficient to establish a
willful violation.
Because the record does not reveal whether the trial court would have revoked the
defendant’s community control and imposed a sentence of 10 years in prison based solely
on the violation of condition 9 listed in the order, we remand for reconsideration. See
McDoughall v. State, 133 So. 3d 1097, 1100 (Fla. 4th DCA 2014); Eubanks v. State, 903
So. 2d 1005, 1006 (Fla. 2d DCA 2005).
AFFIRMED in part; REVERSED in part; REMANDED
SAWAYA, PALMER and TORPY, JJ., concur.
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