Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ALFREDO L. ALVAREZ, ) ) Appellant, ) ) v. ) Case No. 2D19-565 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed March 20, 2020. Appeal from the Circuit Court for Hillsborough County; Nick Nazaretian, Judge. Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Pamela Cordova Papasov, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. Alfredo Alvarez appeals from the order revoking his probation based on the trial court's determination that he violated standard sex offender condition 21. Because we agree with Alvarez that competent, substantial evidence failed to establish a rational relationship between his deviant behavior pattern and the sexually explicit material found on his cellphone, we reverse and remand for vacatur of the order of revocation and reinstatement of probation with all applicable credit for time served. In 2005, Alvarez pleaded guilty to one count of lewd or lascivious molestation pursuant to section 800.04(5)(a), (b), Florida Statutes (2004). The trial court sentenced him to seventy-eight months' imprisonment followed by fifteen years' sex offender probation. He was released in April 2011. During a search of Alvarez's house in November 2018, officers recovered thirteen photos from his cellphone. Later that month, officers filed a criminal report affidavit alleging that Alvarez had violated his sex offender probation. At the evidentiary hearing on the alleged violation of probation (VOP), the trial court determined that Alvarez had violated standard sex offender condition 21 and sentenced him to fifteen years in state prison, with credit for all prior time served plus credit for jail time served for this violation. This appeal followed. Condition 21 prescribes: Unless otherwise indicated in the treatment plan provided by a qualified practitioner in the sexual offender treatment program, a prohibition on viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern. At the VOP hearing, the trial court took judicial notice of Alvarez's (unsigned) plea letter, which described the underlying offenses only as "Lewd or Lascivious Molestation (Victim Less than 12)."1 Apart from that, the State introduced 1It appears that the only reason the plea letter was introduced was to establish that Alvarez had been on notice of the substance of condition 21 (although it was identified by a different number in the plea letter). -2- only the photographs themselves. The trial court summarily determined that Alvarez had violated condition 21. On appeal, Alvarez argues that the State failed to present sufficient evidence of the underlying charge and its relation to the photos. We review for an abuse of discretion the trial court's revocation of probation for violating condition 21 and ask whether competent, substantial evidence supported the decision. Bauer v. State, 96 So. 3d 1063, 1066 (Fla. 4th DCA 2012). Florida courts have consistently held that to establish that a sex offender has violated condition 21, the evidence must show a rational relationship between the sexually explicit material and the defendant's deviant behavior pattern. Sellers v. State, 16 So. 3d 225, 227 (Fla. 5th DCA 2009). Here, the State wholly failed to establish a rational relationship between the sexually explicit material and the defendant's deviant behavior pattern. Indeed, the evidence presented at the hearing gives us no idea what Alvarez's deviant behavior pattern is. On appeal, the State argues that the statutory definition of "lewd and lascivious molestation" in section 800.04(5) by itself suffices to establish Alvarez's deviant behavior pattern. But condition 21 specifically requires relevance "to the offender's deviant behavior pattern," not to the statutory definition of the offense, which as a rule will be broader than any particular offender's pattern of behavior. See Sellers, 16 So. 3d at 227. Alternatively, the State refers us to the criminal report affidavit in the criminal file, which provides, in pertinent part, that Alvarez "did touch, in a lewd or lascivious manner, the breasts, buttocks, and vaginal area of the victim. These touches were performed over the victims [sic] clothing. The victim is age 9 and the def. [sic] is -3- age 65." But the State did not refer the trial court to that affidavit, and on appeal, it cannot rely on evidence that it failed to present at the revocation hearing. Relying on Sellers, the State further argues that the photos effectively speak for themselves and no additional evidence was necessary to establish their relevance because they either involve "obscene, pornographic, or sexually stimulating images of children," see 16 So. 3d at 227 & n.1 (explaining that determining relevance is "relatively easy and straightforward" when the images involve "obscene, pornographic, or sexually stimulating images of children"), or are " 'sexually explicit and contain[] a puerile or adolescent theme,' " see id. at n.2. We disagree.2 The photos included one picture of a shirtless toddler embracing and possibly attempting to nurse an infant, eight pictures of females getting massages, and five pictures of apparently adult women in suggestive positions or dress. Despite the State's repeated and conclusory characterization of some of the females as "underdeveloped looking," none of the pictures except for the first one appears to involve a child, and none of the pictures that are sexually explicit or suggestive has a puerile or adolescent theme. With respect to the first picture, the State insists: No reason exists for an unrelated adult to be in possession of a picture of a bare-chested child pretending to breastfeed 2Because the pictures are in the record and we can view them for ourselves, we are not bound by any trial court findings with respect to them. See Almeida v. State, 737 So. 2d 520, 524 & n.9 (Fla. 1999) (conducting an independent review of the transcript and tape of a custodial interrogation, concluding that the audiotape "belied" one of the trial court's factual findings, and recognizing that insofar as a ruling is based on a videotape or audiotape, the trial court "has no special vantage point"); State v. Thompson, 193 So. 3d 916, 919 (Fla. 2d DCA 2016) ("An appellate court may independently review the audio recording of an interview to assess whether competent, substantial evidence supports the trial court's findings." (citing Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007))). In any event, the trial court made no findings; as noted above, it summarily concluded that Alvarez had violated condition 21. -4- another infant. It is further troubling that the adult in possession of this photograph is not only not related to the child, but a sexual predator convicted for inappropriate contact with a child under the age of twelve. Under these circumstances, this photograph falls within the Sellers footnote 1 category as it is a sexually stimulating image of a child. Absent something more than the State's insistence, however, and especially absent any evidence whatsoever that Alvarez's deviant behavior pattern involved a toddler or infant, we decline to make this considerable leap in logic. The State, therefore, failed to present sufficient evidence to establish the relevance of the photos to Alvarez's deviant behavior pattern. Accordingly, the trial court abused its discretion in determining that Alvarez violated condition 21, and we reverse and remand for vacatur of the order of revocation and reinstatement of Alvarez's probation with all applicable credit for time served. Reversed and remanded with directions. KHOUZAM, C.J., and SMITH, J., Concur. -5-