Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MARK ALLEN DOUGLAS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-3196 February 11, 2022 Appeal from the Circuit Court for Lee County; Robert J. Branning, Judge. Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. Mark Allen Douglas appeals the trial court's order modifying his probation and the resulting sentence after finding him in violation of one condition of probation. Douglas raises two issues on appeal, one of which requires reversal. Because the State failed to prove Douglas willfully and substantially violated his probation by losing his GPS unit, we reverse the modification order and remand for the trial court to reinstate Douglas to probation. As a result, we do not address Douglas's second issue concerning sentencing. In June 2017, pursuant to a plea agreement, Douglas received consecutive sentences of twenty-four months of community control followed by thirty-six months of probation for failing to register as a sex offender. After a first violation of probation, the trial court sentenced him to ninety days in jail followed by his return to supervised release. He was on probation at the time the events at issue took place. In August 2020, an affidavit of violation of probation was filed, alleging that Douglas had violated his probation by losing his GPS unit. At the violation of probation hearing Douglas and others provided testimony as to what may have happened to the GPS unit; however, it was unclear how Douglas had lost the unit, which he had been wearing. The trial court noted inconsistencies in 2 Douglas's testimony and that none of the testimony explained how the GPS unit arrived at its eventual resting point. Nevertheless, the court issued an order of modification of probation finding that Douglas "failed to abide by the rules of GPS Electronic Monitoring as instructed, in that, the offender failed by losing his RTC GPS Unit on 8/15/20 at about 12:47 am, which caused a bracelet gone alert on 8/15/20 at 12:47 am[, w]ith a replacement cost of $1050.00." The trial court sentenced Douglas to 364 days in jail with 165 days of credit for time served, after which Douglas was to report to probation. This appeal follows. We review the trial court's finding of a willful and substantial violation of probation for competent, substantial evidence and review the decision to modify probation for abuse of discretion. See Savage v. State, 120 So. 3d 619, 623 (Fla. 2d DCA 2013). A trial court may modify or revoke probation upon completion of a two- step process. See id. at 621. First, the trial court "must determine whether the violations were willful and substantial and supported by the greater weight of the evidence or, stated differently, whether the defendant made reasonable efforts to comply with the terms and conditions of probation." Oates v. State, 872 So. 2d 351, 353 (Fla. 3 2d DCA 2004). Second, "[u]pon finding a violation of probation or community control, the court decides whether to revoke, modify, or continue it." Savage, 120 So. 3d at 623. The State has the "burden to establish that a defendant has willfully and substantially violated a condition of probation." Soliz v. State, 18 So. 3d 1094, 1096 (Fla. 2d DCA 2009). "A defendant's failure to comply with a probation condition is not willful where his conduct shows a reasonable, good faith attempt to comply, and factors beyond his control, rather than a deliberate act of misconduct, caused his noncompliance." Comolli v. State, 152 So. 3d 119, 120 (Fla. 2d DCA 2014) (quoting Soto v. State, 727 So. 2d 1044, 1046 (Fla. 2d DCA 1999)). "A violation of probation will not be found where the violation is due to negligence or ineptitude." [Erik] Garcia v. State, 701 So. 2d 607, 609 (Fla. 2d DCA 1997). However, the "intentional disregard of [ . . . ] GPS monitoring rules, tampering with the equipment, or actual violations of curfew or other activity restrictions will generally amount to willful and substantial violations of the conditions imposed." Correa v. State, 43 So. 3d 738, 745 (Fla. 2d DCA 2010). 4 On appeal, Douglas argues that the trial court erred by finding that his violation of probation was willful and substantial. He maintains that he demonstrated a reasonable, good faith attempt to comply with his probationary requirements. He also contends that the evidence established that his loss of the GPS unit was unintentional. He first realized the GPS unit was missing after the monitoring company called him. He then notified law enforcement by calling 911 and searched for the GPS unit in multiple places. He was uncertain as to how he may have lost the unit and contended that "the circumstances fit more with theft or loss of the device, neither of which constitutes a deliberate act of misconduct." In response, the State argues that Douglas's willful and substantial violation of probation was shown through inconsistent statements and evidence presented during the hearing. The State points to Douglas's statements that the GPS unit may have fallen off him or that someone may have taken it off him during a dispute and thrown it into the woods. The State contends that the trial court correctly concluded that Douglas willfully and substantially violated his probation by failing to comply with conditions pertaining to his GPS monitoring. The State cites to two Second 5 District cases: [Sonny] Garcia v. State, 151 So. 3d 1274 (Fla. 2d DCA 2014), and Soliz, 18 So. 3d 1094. However, neither of those cases is analogous to the case before us. In [Sonny] Garcia, this court affirmed the revocation of sex offender probation for the offense of possession of child pornography. 151 So. 3d at 1274. The court found that there was "competent, substantial evidence to support the trial court's finding that Garcia 'intentional[ly] disregard[ed] . . . the GPS monitoring rules,' constituting a willful and substantial violation of probation." Id. (alteration in original). In Soliz, an affidavit charged Soliz with violating "his probation by failing to submit to electronic monitoring because he did not carry the tracking device at all times and did not charge the tracking device properly." 18 So. 3d at 1097. His probation officer testified that Soliz had twice failed to carry the tracking device, had ten insufficient battery alarms, and had twenty-one "bracelet gone notifications." Id. This court affirmed the trial court's findings of a willful and substantial violation of a condition of probation requiring GPS monitoring. Id. 6 Here, in modifying Douglas's probation, the trial court expressed doubt as to Douglas's explanation of what might have happened to the GPS unit. But the court found that Douglas had violated a condition of his probation by "losing" the costly GPS unit. However, the record contains no evidence that Douglas willfully acted in a manner to cause the loss of the GPS unit. In light of the evidence presented and the trial court's finding that Douglas lost the GPS unit, we conclude that the State did not carry its burden to establish a willful and substantial violation of a condition of probation. In summary, no evidence established a deliberate act of misconduct by Douglas causing his noncompliance. See Comolli, 152 So. 3d at 120. Therefore, we reverse the trial court's modification order and the resulting sentence, and we remand for reinstatement of Douglas's probation. Reversed and remanded. CASANUEVA and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 7