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 MICHAEL WAYNE GORMAN, ) ) Appellant, ) ) v. ) Case No. 2D19-1076 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed May 1, 2020. Appeal from the Circuit Court for Lee County; Nicholas R. Thompson, Judge. Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. MORRIS, Judge. In this appeal filed pursuant to Anders v. California, 386 U.S. 738 (1967), Michael Wayne Gorman appeals the revocation of his community control and sentences for the underlying crimes of possession of amphetamine and possession of drug paraphernalia. We affirm but remand for the trial court to correct certain violations and to strike other violations from the revocation order.1 I. Condition 5 (no new law violations) The order of revocation lists five violations of condition 5 which barred Gorman from committing new law violations. "However, while 'the State need only prove by a preponderance of the evidence that the [person on community control] committed [an] unlawful act[,] . . . "it is improper to revoke [community control] solely on proof that the [person] has been arrested." ' " Herrera v. State, 286 So. 3d 867, 870 (Fla. 2d DCA 2019) (second and third alterations in original) (quoting Contreras v. State, 274 So. 3d 532, 534 (Fla. 2d DCA 2019)). "Thus, if the State fails to present evidence that a [person on community control] committed a new law violation and if the record is unclear whether the [person] entered a plea to the charge or whether a plea resulted in a conviction, the evidence is insufficient to establish that a new law violation occurred for purposes of revoking [community control] on that basis." Id. Here, at the violation hearing, Gorman acknowledged that he had been "picked up" for five new charges, but he immediately stated that the State had dropped all but two charges. He admitted entering a guilty plea to the two remaining charges and to receiving a sentence for those charges. Consequently, those two violations of 1Our independent review of the record in this case establishes at least one issue of arguable merit: the State's failure to prove some of the violations by a preponderance of the evidence. And in an Anders case, counsel has a responsibility to point out such issues to this court. See In re Order of First Dist. Court of Appeal Regarding Brief Filed in Forrester v. State, 556 So. 2d 1114, 1117 (Fla. 1990). However, because we have concluded that the revocation of Gorman's community control was proper based on several violations and, therefore, that the striking of various violations will have no effect on the revocation or his sentence, the striking of the Anders brief and supplemental briefing are not necessary to resolve this appeal. -2- condition 5 were proven and were sufficient, by themselves, to revoke Gorman's community control. See id. However, the record does not support a revocation based on the three remaining condition 5 violations. Testimony provided by Gorman's community control officer indicated only that he had become aware of Gorman's "new law violations." But the State did not present any other evidence related to the three remaining new charges that Gorman claimed had been dropped. And Gorman did not admit to entering a plea to, being convicted of, or serving a sentence for those three remaining charges. Thus, on remand, the trial court will need to strike three of the condition 5 violations. II. Condition 3 (changing residence without permission) We conclude that the State sufficiently proved this violation by a preponderance of the evidence. The State did not prove this violation by hearsay alone. Rather, the State proved this violation through a combination of the community control officer's testimony and Gorman's acknowledgement that he had been kicked out of his approved residence and that he had been in another county—where he was arrested— without receiving permission from the community control officer. Cf. Grimsley v. State, 830 So. 2d 118, 119 (Fla. 2d DCA 2002) (explaining that "it would have been clear that Grimsley [had committed a condition 3 violation by changing] her approved residence and [leaving] Hardee County if the State had presented proof that she had been arrested in Hillsborough County" but concluding that the State did not meet its burden where Grimsley's arrest was never mentioned during the revocation hearing). However, the revocation order erroneously indicates that Gorman admitted this violation when, in fact, this violation was contested at the hearing. Thus, on remand, the trial court will -3- need to correct the revocation order to reflect that Gorman was found to be in violation of community control after a hearing. III. Condition 15 (failing to report to community control officer as instructed on April 24, 2018) At the hearing, Gorman provided inconsistent answers when asked about whether he reported to the community control officer on April 24, 2018. He initially testified that he had reported as instructed, but he went on to assert that there had been "a big mix up because when I got released in April I wasn't even supposed to be on probation anymore." After Gorman admitted that he failed to turn in his daily log on April 24, 2018, the State inquired, "You also did not show up that day, on April 24th, when you didn't turn in that daily log, right?" And Gorman responded, "No, I did not." The State also elicited from the community control officer that Gorman did not report on April 24, 2018. While we agree that the State sufficiently proved a violation of condition 15 by the preponderance of the evidence, the revocation order again needs to be corrected to reflect that Gorman was found to be in violation of community control after a hearing. IV. Condition 21 (failing to remain confined to approved residence on April 26, 2018) The affidavit of violation alleged that on April 26, 2018, Gorman failed to remain confined to his approved residence. The affidavit further alleged that the community control officer went to the residence on that day and that Gorman "did not answer the door despite several loud knocks on the front door and his bedroom window and there were no signs of anyone being home." However, at the hearing, Gorman did not provide any testimony about this violation. And the community control officer merely -4- testified that all the lights were off and the blinds were drawn at the residence and that Gorman did not appear to be home. The community control officer did not testify that he attempted to make contact with anyone in the home by knocking on the doors and windows. Thus we conclude that the State did not prove by a preponderance of the evidence that Gorman failed to remain confined to the residence on that day because it is entirely possible that he was, in fact, inside the residence. The fact that the lights were off and the blinds drawn does not negate the possibility that he was asleep. Consequently, on remand, the trial court will need to strike this violation from the revocation order. V. Special condition 1 (failing to complete an evaluation and/or screening for substance abuse) Near the end of the hearing, the trial court inquired with the State whether there was any testimony or other evidence presented that related to whether Gorman had failed to complete an evaluation or screening for substance abuse. The State responded: "No, Your Honor. He never got to that." So the trial court asked, "You're not going forward on that one?" And the State responded: "No, Your Honor. He was already in - - custody by that time so." The trial court then clarified that the remaining violations were for conditions 3, 5, 11, 15, 21, and 22. The State told the court that that was correct. The trial court then found Gorman "guilty of the violations that I just stated." The revocation order lists a violation of condition 1 which, as gleaned from the transcript of the hearing, was meant to be a violation of special condition 1. However, because it is clear that the State elected not to pursue a violation of special condition 1 and that, therefore, no evidence was presented as to that condition, no -5- violation of special condition 1 (here condition 1 due to the typographical error) should have been listed in the revocation order. Thus, on remand, the trial court should strike this violation from the order. VI. Conclusion Having independently reviewed the record, we conclude that in addition to the two violations of condition 5 previously addressed, Gorman's community control was properly revoked for violations of condition 3 (changing residence without permission), condition 11 (failing to submit to random drug testing), condition 15 (failing to report to community control officer as instructed on April 24, 2018), and condition 22 (failing to turn in a daily log on April 24, 2018).2 We also conclude that his sentence is legal. Consequently, while we affirm the revocation of his community control and the resulting sentences, we remand with directions for the trial court to strike three of the condition 5 violations, the condition 21 violation, and the violation of special condition 1. The trial court is also directed to correct the revocation order to reflect that Gorman was found guilty of the violations of conditions 3 and 15 after a hearing, rather than by admission. Affirmed; remanded with directions. BLACK and SALARIO, JJ., Concur. 2The hearing transcript reflects that Gorman admitted to the violations of condition 11 and condition 22. -6-