Rodgers v. State , 2015 Fla. App. LEXIS 11807 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
EARL RODGERS, )
)
Appellant, )
)
v. ) Case No. 2D14-1366
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed August 7, 2015.
Appeal from the Circuit Court for Highlands
County; William D. Sites, Judge.
Howard L. Dimmig, II, Public Defender,
and Robert D. Rosen, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Elizabeth Everson,
Assistant Attorney General, Tampa, for
Appellee.
SLEET, Judge.
Earl Rodgers challenges the revocation of the probation he was serving
for the offense of sexual activity with a child. We affirm the revocation of Rodgers'
probation but remand with directions to the trial court to strike that portion of the
revocation order finding that Rodgers violated condition twenty-five of his supervision by
having contact with the victim's brother.
In its order of revocation, the trial court found that Rodgers violated his
probation by (1) failing to provide all of his email addresses to his probation officer
(condition seven), (2) having contact with the victim (condition twenty-two), and (3)
having contact with the victim's mother, the victim's sister, and the victim's brother (three
violations of condition twenty-five). The record, however, does not contain competent
substantial evidence that Rodgers had contact with the victim's brother. As such, that
violation is not supported by the greater weight of the evidence and must be stricken.
See Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) ("The trial court must first
determine whether the State proved by the greater weight of the evidence that the
probationer willfully and substantially violated probation.").
Nevertheless, we affirm the revocation of Rodgers' probation.
When a trial court relies on both proper and improper grounds
for revocation but it is clear from the record that the trial court
would have revoked probation even without the existence of
improper grounds, this court and others have affirmed the
revocation of probation and remanded for entry of a corrected
revocation order. Only when this court cannot determine from
the record whether the trial court would have revoked the
defendant's probation based solely on the proper grounds will
this court reverse and remand for reconsideration by the trial
court.
Lee v. State, 67 So. 3d 1199, 1201-02 (Fla. 2d DCA 2011) (citations omitted).
Here, it is clear from the record that the trial court would have revoked
Rodgers' probation based on his other violations, especially his having contact with the
victim's sixteen-year-old sister. Accordingly, we affirm the revocation of probation and
remand with directions to the trial court to strike the violation of condition twenty-five
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based on Rodgers' contact with the victim's brother and to enter a corrected revocation
order.
Affirmed and remanded.
CASANUEVA and MORRIS, JJ., Concur.
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