JEREMY LIVINGSTONE v. STATE OF FLORIDA , 268 So. 3d 252 ( 2019 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JEREMY LIVINGSTONE, DOC #Y29795, )
)
Appellant, )
)
v. )
) Case No. 2D17-1695
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed April 12, 2019.
Appeal from the Circuit Court for Lee
County; Bruce E. Kyle, Judge.
Howard L. Dimmig, II, Public Defender,
and Richard J. Sanders, Assistant Public
Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa, for
Appellee.
SLEET, Judge.
Jeremy Livingstone challenges the trial court's order revoking his
probation. We reverse only the portion of the order finding that Livingstone violated
condition four of his probation by possessing ammunition. We affirm the revocation
order in all other respects.
Standard condition four of the probation order states: "You will not
possess, carry[,] or own any firearm. You will not possess, carry, or own any weapon
without first procuring the consent of your officer." This language tracks the language of
section 948.03(1)(m), Florida Statutes (2015). Although chapter 948 does not define
"firearm" or "weapon," chapter 790, entitled "Weapons and Firearms," defines both
terms, see § 790.001(6), (13), Fla. Stat. (2015), and neither definition includes
ammunition. In fact, a separate definition for "ammunition" is found in section
790.001(19).
Additionally, although section 948.03(1)(m) only includes firearms and
weapons in its prohibition of what probationers and offenders on community control may
possess, section 790.23(1) is more restrictive as to what a convicted felon may
possess, specifically making it unlawful for a felon to possess ammunition. As such, the
legislature is aware of the difference between ammunition and a firearm or weapon, and
it is presumed that it knew how to include ammunition in its list of what a probationer or
person on community control may not possess if it had so intended. See Cason v. Fla.
Dep't of Mgmt. Servs., 944 So. 2d 306, 315 (Fla. 2006) ("[W]e have pointed to language
in other statutes to show that the [l]egislature 'knows how to' accomplish what it has
omitted in the statute in question."); see also State v. Lewars, 259 So. 3d 793, 800 (Fla.
2018) (holding that alternative definitions of "prison releasee reoffender" included in
section 775.082(9)(a)(1) and (9)(a)(2) "show[] that the [l]egislature knew how to make
the prison sentence, as opposed to the facility, the focus of the definitional inquiry, if the
[l]egislature intended to do so" (citing Cason, 944 So. 2d at 315)).
Accordingly, the possession of ammunition is not enough to establish a
violation of standard probation condition four, and the trial court erred here in finding
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that Livingstone committed this alleged violation of probation.1 However, because the
record reflects that the trial court would have revoked Livingstone's probation based on
his other violations, we reverse only the portion of the revocation order finding
Livingstone in violation of condition four and remand with instructions to strike that
violation; we affirm the revocation order in all other aspects. See King v. State, 915 So.
2d 764, 765 (Fla. 2d DCA 2005) ("[W]e reverse that portion of the trial court's order
finding a violation of condition 27 and remand to strike the finding. We affirm the trial
court's revocation of King's [supervision] because it is clear from the record that the trial
court would have revoked King's [supervision] based on his violations of conditions 3, 5,
9, and 12.").
Affirmed in part, reversed in part, and remanded with instructions.
NORTHCUTT and SILBERMAN, JJ., Concur.
1We
note that this argument was not preserved below. But "revoking
probation based partly on a purported violation that was not proved or admitted
constitutes fundamental error." Odom v. State, 15 So. 3d 672, 678 (Fla. 1st DCA 2009).
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