Thompson v. State , 2015 Fla. App. LEXIS 11927 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed August 12, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2337
Lower Tribunal No. 09-34892
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Keith Thompson,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Cristina M.
Miranda, Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellee.
Before WELLS, EMAS, and LOGUE, JJ.
LOGUE, J.
Defendant, Keith Thompson, seeks review of the trial court’s order revoking
his probation and sentencing him to fifteen years in state prison. We affirm the
probation revocation, but we reverse on two points regarding the basis for the
revocation and remand for resentencing.
In August 2010, the defendant was charged with possession of a knife by a
convicted felon. As a habitual felony offender, he was facing a sentence ranging
from 71.7 months to 30 years in prison. He entered a plea to complete a six-month
behavior modification program at the Spectrum residential care facility to address
his bipolar disorder and serve three years of probation.
In late 2010, the defendant absconded from the Spectrum program. When he
was taken back into custody, his probation was modified and his participation in
the Spectrum program was extended to eighteen months. After approximately
thirteen months in the program, the defendant was charged with violating his
probation again, this time by a) threatening two Spectrum staff members, one of
whom was his therapist, with violence, b) having a knife found under the dresser
drawer in his room, c) being discharged from the Spectrum program due to his acts
of aggression to others by threats of bodily harm, and d) changing his residence
without first receiving consent from his probation officer.
The trial court held a probation violation hearing on July 16, 2013, where
the court heard live testimony from witnesses including the appellant, his probation
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officer, his therapist, and the other Spectrum staff member he had allegedly
threatened. At the hearing, evidence was admitted into the record indicating that
the defendant had further violated the rules of Spectrum, and therefore his
probation, by attempting to bring into the facility some medicines and more cash
than allowed. The trial court revoked the appellant’s probation, finding as follows:
I do find that there was a willful violation on the first three
allegations that defendant violated the rules of Spectrum and
specifically the cardinal rules of Spectrum where he did abide by all
the rules that he was presented and oriented to as well as provided a
copy of for thirteen months, so his act in conformity at that times [sic]
shows him being aware of those rules and first [sic] allegation is that
he violently threatened physical harm to a Spectrum member. That is
violation [sic] of Spectrum’s cardinal rule and the second there was
a knife found in his room in violation of the rules of Spectrum and
the third - - - then on the third that he violently threatened physical
harm on a second staff member . . . .
In addition, he acted in conformity to what he should have done
in this program by going to vent at his therapist, but he did above and
beyond that and he violated the rules in [sic] how to vent. There was
something else, he also failed to comply with the rules of Spectrum,
when he brought in more money than he was permitted, to which
[sic] were the rules that he was to comply with, as well as an item
that he was not permitted to have. That in and of itself might not
have been a violation that was sufficient, but all of it together is how
I’m finding that he violated the rules of Spectrum, which is
sufficient to violate his probation.
(emphasis added). The trial court then reset the case for sentencing and, at the
August 27, 2013 hearing, which included testimony from a neuropsychologist,
sentenced the defendant to fifteen years in prison. The defendant appealed.
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We review the trial court’s ruling on a revocation of probation for abuse of
discretion. State v. Carter, 835 So. 2d 259, 262 (Fla. 2002); Harris v. State, 898 So.
2d 1126, 1127 (Fla. 3d DCA 2005). In order for a trial court to revoke a
defendant’s probation, the alleged violation of the probation must be both willful
and substantial. Lawson v. State, 969 So. 2d 222, 230 (Fla. 2007).
Here, one of the grounds cited by the court for revoking the defendant’s
probation was the finding that he had a knife in his room in violation of Spectrum’s
rules. Specifically, the violations of probation cited in the probation violation
affidavit included:
Violation of Special Condition of the Order of Probation,
furthermore by failing to participate and or complying within the
residential program, Spectrum, in that, on October 5, 2012, during the
search of subject’s room, after his violent behavior, a knife was found
hidden under the dresser drawer, and as grounds for belief that the
offender violated his probation because he did not follow the rules and
regulations of this program by having a weapon in his possession.
(emphasis added). The defendant was not found in actual possession of the
weapon, and as such, the onus was on the State to establish constructive
possession. Gonzalez v. State, 832 So. 2d 898, 899 (Fla. 3d DCA 2002). “To prove
constructive possession, the State must present competent, substantial evidence of
the accused's knowledge of the presence of contraband and his or her ability to
exercise dominion and control over it.” Jennings v. State, 124 So. 3d 257, 262 (Fla.
3d DCA 2013)(citing Reynolds v. State, 983 So. 2d 1192, 1194 (Fla. 3d DCA
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2008)). Furthermore, “[m]ere proximity to contraband, without more, is legally
insufficient to prove possession.” Johnson v. State, 456 So. 2d 923, 924 (Fla. 3d
DCA 1984).
The knife was found in the defendant’s dormitory room, but it was not in
plain view. It was located in the recessed area under the drawer used by the
defendant which could be accessed only by removing the drawer from its tracks.
At the time the knife was discovered, the defendant was the only occupant of the
room. The dormitory room could house six residents, however, and at one point
had five occupants, including the defendant. Moreover, the room did not have a
lock and could be entered by other residents living in other rooms. The drawer also
did not have a lock. No evidence of fingerprints on the knife was entered into
evidence. Among other defects, these facts do not establish that the defendant had
knowledge of the knife. See Brown v. State, 8 So. 3d 1187, 1188-89 (Fla. 4th DCA
2009); Earle v. State, 745 So. 2d 1087, 1090-91 (Fla. 4th DCA 1999). Because
constructive possession was not established, the trial court erred in using the
possession of the knife as a basis for revoking the defendant’s probation.
The trial court also appears to have based the revocation of probation, at
least in part, on the defendant bringing an amount of money higher than what was
allowed into the facility and for being in possession of an over-the-counter topical
medication which was not permitted. The court acknowledged that these alleged
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infractions “in and of itself might not have been a violation that was sufficient, but
all of it together is how I’m finding that he violated the rules of Spectrum, which is
sufficient to violate his probation.” It is undisputed that the possession of money
and the over-the-counter medication were not charged in the affidavit, and as such,
the trial court was not permitted to revoke the defendant’s probation based upon
this conduct. Wells v. State, 60 So. 3d 551, 553 (Fla. 1st DCA 2011); Richardson
v. State, 694 So. 2d 147 (Fla. 1st DCA 1997) (“The revocation of a defendant’s
probation based on a violation not alleged in the charging document is a
deprivation of the right to due process of law.”).
Based upon the foregoing, we affirm the revocation of probation as to the
threats of violence made by the defendant and his failure to complete the Spectrum
program, because we find no abuse of discretion in the trial court’s finding that the
defendant violated his probation as to those allegations. However, we reverse as to
the possession of the knife, the possession of money in an amount higher than
allowed at the Spectrum facility, and possession of the over-the-counter topical
medication. Because we reverse two of the grounds for the sentence, and one of
those grounds, possession of the knife, was substantial, we vacate the sentence and
remand for resentencing, as it is unclear from the record whether the trial court
would have imposed the same sentence on the remaining violations. See Gray v.
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State, 40 Fla. L. Weekly D1700 (Fla. 3d DCA July 22, 2015); Secure v. State, 432
So. 2d 630 (Fla. 3d DCA 1983).
Affirmed in part, reversed in part, and remanded.
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