Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BRIAN PATRICK WEAVER, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-61 March 11, 2022 Appeal from the County Court for Pasco County; Anne Wansboro, Judge. Charalampos G. Demosthenous of The Demosthenous Law Firm, Tampa, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa; and Allison C. Heim, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee. ROTHSTEIN-YOUAKIM, Judge. Brian Patrick Weaver argues that the order revoking his probation is due to be reversed because competent substantial evidence did not support the trial court's finding that his failure to comply with his obligations to report to his probation officer and to complete his community service hours was willful and substantial. Because the State failed to present any evidence with regard to these alleged violations beyond Weaver's bare failure to comply, we agree. In February 2019, Weaver pled no contest to one count of misdemeanor petit theft and was sentenced to twelve months of probation, which included fifty hours of community service. He was also ordered to pay a variety of fines and court costs. In September 2019, the probation officer filed an affidavit alleging that Weaver had violated the conditions of his probation by failing to pay the fines and court costs (in violation of multiple conditions); failing to report for scheduled appointments with the probation department on June 13, September 12, and September 17, 2019, and failing to report at all after August 28, 2019 (in violation of condition two); and failing to complete community service (in violation of condition ten).1 1 In January 2020, the probation officer filed an amended affidavit alleging the same violations but with a cost adjustment. 2 At the violation hearing, Weaver acknowledged that the terms and conditions of his probation had been explained to him and that he was aware that he had to make certain payments and report to his probation officer. Weaver testified that he had not had a job when he started probation and that he also did not have a job at the time of the hearing. He testified that he was applying for social security benefits, but in the meantime, his live-in fiancée paid for all the household expenses. Weaver further testified that his right arm is paralyzed, affecting his ability to work and to engage in daily activities such as driving a car, and he had neither a car nor a driver's license. Weaver was not asked for, nor did he provide, any information regarding his alleged failures to report or to fulfill his community service obligation. Lead probation officer Michelle Rinaldi testified that Weaver was on probation, that the terms and conditions of his probation had been explained to him, including his community service obligation, and that he had confirmed his understanding of them. Rinaldi testified that she knew that all of Weaver's conditions were outstanding because "[the probation office] ha[d] no proof of them." Rinaldi testified further that the probation office had filed the 3 violation affidavit because Weaver was "non-reporting" and "none of his conditions were completed." At the conclusion of the evidence, Weaver argued that he was unable to comply with the monetary conditions. The trial court agreed that the State had failed to prove that Weaver violated his probation by failing to pay fines and costs but found that the State had proven that Weaver's failure to report and failure to complete community service hours were substantial and willful violations. The court orally revoked and terminated Weaver's probation and sentenced him to 120 days in jail. This appeal followed.2 "A violation of probation must be both substantial and willful to justify revoking probation." Junk v. State, 230 So. 3d 984, 985 (Fla. 1st DCA 2017) (citing Burgin v. State, 623 So. 2d 575, 576 (Fla. 1st DCA 1993)). Significantly, it is the State that bears "the burden of proving by the greater weight of the evidence that the violation was willful and substantial." Jones v. State, 730 So. 2d 349, 351 (Fla. 4th DCA 1999). 2 Weaver filed his notice of appeal on December 22, 2020. This court subsequently issued an order relinquishing jurisdiction for the trial court to render a written revocation order. The trial court rendered its order revoking probation on April 8, 2021. 4 Weaver did not object to or dispute Officer Rinaldi's testimony that he was "non-reporting" and that "none of his conditions were completed." But there was no testimony whatsoever regarding how, when, where, or why he failed to report to probation or to perform community service. Weaver did not make any argument in the trial court vis-à-vis the failure-to-report and community-service violations; his sole argument pertained to his failure to pay his costs and fees. Because error committed during a revocation proceeding must be preserved by contemporaneous objection, see Woodson v. State, 9 So. 3d 716, 717 (Fla. 2d DCA 2009) (noting that defendant did not preserve revocation issue where he "made no objection to not being specifically advised of the alleged violation at the start of the hearing"); Jones v. State, 876 So. 2d 642, 644–45 (Fla. 1st DCA 2004) (explaining that a revocation of probation proceeding "is merely an extension of the sentencing process and is therefore subject to its preservation requirements"), his arguments on appeal regarding those violations are unpreserved and are thus reviewable only for fundamental error, see Phillips v. State, 316 So. 3d 779, 5 782 (Fla. 1st DCA 2021) ("[A]n unpreserved argument is reviewable if it constitutes fundamental error." (citing § 924.051(3), Fla. Stat.)). Although, as the State points out, Weaver does not specifically invoke "fundamental error" in his brief, revoking a probationer's probation based on an unproven violation, as Weaver argues was done here, constitutes fundamental error. See Odom v. State, 15 So. 3d 672, 678 (Fla. 1st DCA 2009) ("[R]evoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error."). And here, the State wholly failed to prove that Weaver willfully violated any conditions of his probation. As to condition two, the violation affidavit alleged that Weaver had failed to "report for scheduled appointment(s) 06/13/19, 09/12/19 & 09/17/19 with probation department" and further failed "to report to probation since 08/28/19." But at the revocation hearing, the sole evidence of Weaver's willful failure to report was Officer Rinaldi's statement that Weaver was "non- reporting," i.e., that he had failed to report. There was no testimony establishing even that Weaver had had appointments scheduled on those dates and, if he did, that he had been notified of them. 6 Similarly, the State presented no evidence to support the trial court's finding that Weaver willfully violated condition ten of his probation by failing to perform his community service hours. As with condition two, Weaver was never asked any questions about this condition at the violation hearing. The sole evidence related to this condition was Officer Rinaldi's testimony that "[a]ll of the conditions are outstanding" because "[w]e have no proof of them." But condition ten did not require Weaver to submit proof of his completed community service hours. See King v. State, 915 So. 2d 764, 765 (Fla. 2d DCA 2005) (testimony that probationer failed to submit documentation of community service hours cannot serve as evidence of a violation of community control where "documentation of community service hours was not an express condition of community control"). And even assuming that evidence of failure to submit proof of performance of community service qualifies as evidence of failure to perform community service, the State still presented no evidence that the failure was willful. As Weaver argues on appeal, the evidence did not even establish that there had been community service opportunities for Weaver given his disability. 7 The State argues that Weaver himself offered no explanation for his alleged violations, but we again emphasize that the burden is not on Weaver to establish that he made a good faith effort to comply with the conditions of his probation. Rather, it is the State's burden to "prov[e] by the greater weight of the evidence that the violation was willful and substantial." Jones, 730 So. 2d at 351. It failed to do so. Because the State wholly failed to carry its burden, we reverse and remand for the trial court to vacate its revocation order. Reversed and remanded for vacatur. CASANUEVA and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 8