Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MARCUS ANTHONY SMITH, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D2025-1715 September 18, 2026 Appeal from the Circuit Court for Sarasota County; Thomas Krug, Judge. Blair Allen, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant. James Uthmeier, Attorney General, Tallahassee, and William A. Leto, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. Marcus Anthony Smith appeals the order revoking his probation and the resulting sentence. Because the State failed to prove that Smith willfully and substantially had violated his probation by being away from his approved residence without the permission of his supervising officer, we reverse and remand for vacatur of the revocation order and sentence and for reinstatement of probation. In 2022, Smith pled guilty to fraudulently using personal identification information and possessing forged notes or sills. The trial court imposed concurrent jail sentences followed by a term of community control and then two years' probation. In 2024, Probation Officer Melissa Monetti filed an affidavit alleging that Smith had violated condition 9 by failing to remain confined to his approved residence between 10 p.m. and 6 a.m. The affidavit asserted that Smith had failed to answer "his phone or the front door after numerous phone calls and loud knocks on the front door on 06/26/2024 at approximately 11:24 p.m."1 At the violation hearing, Officer Monetti testified that at approximately 10:25 p.m. on June 26,2 she and Officer Michael Klein had arrived at Smith's listed residence—a single-family, cement-block house with a carport—to conduct a curfew check. A car was in the carport, and a scooter was in the yard. Officer Monetti knocked on the front door and an adjacent window, 3 called Smith's name, and called Smith's cellphone several times but received no responses. She did not see or hear any movement inside the house. Neither officer testified regarding how long or how loudly Officer Monetti had knocked or had called Smith's name. Neither officer had been inside the house, and neither could testify as to the layout. Officer Klein testified that he did 1 He was also alleged to have violated condition 3, changing employment without first obtaining his probation officer's consent, but the trial court found that he had not violated this condition. 2 This was an hour earlier than the time that Officer Monetti had alleged in the violation affidavit and appears from the record to have been an inadvertent misstatement on her part. 3 At one point, Officer Klein testified generally that Officer Monetti had knocked on "the doors and windows." He did not elaborate on this testimony, however, and Officer Monetti unequivocally testified that she had knocked only on the front door and adjacent window and had not gone around to the back of the house because it was fenced. Consequently, even in the light most favorable to the State, the only reasonable inference that can be drawn from the evidence as a whole is that Officer Monetti knocked on that one door and that one window. 2 not know if Smith's bedroom was located near enough to the front door for Smith to have heard someone knocking. Smith testified at the hearing and acknowledged that the terms and conditions of his probation had been explained to him and that he had been aware of his curfew. He testified that the house was a rooming house where he lived with three other people and that he had been at the house on the night in question. He testified that he had not heard the officers because he had been asleep, that his bedroom was located toward the back of the house, and that the air conditioning unit in his window tended to drown out outside noise. As for the unanswered phone calls, Smith testified that his cellphone had been turned off because he could not afford to pay the bill. A defense investigator testified that he had gone to the house one morning in January 2025 and had knocked forcefully "three to four times" on the door. After a brief period, someone named Wayne answered the door; he told the investigator that three other people also lived in the house, but he did not know their names or the name of the landlord. The investigator, however, had no information concerning the night in question. The trial court did not believe Smith's explanation for not answering the door or his phone and found that he had willfully and substantially violated his curfew. The court stated: Based on the totality of the evidence of the officers who went there, in particular, Officer Monetti, who also went, by the way, with Officer Klein. No answer. Several attempts to bang on the door. No sound coming from inside the house. Attempted several attempts on the cell phone. In addition, walking to the side, she testified and knocking on a window several times. I'm going to find that this is persuasive. 3 The court revoked Smith's probation and sentenced him to forty-five months in prison. Smith now appeals, arguing that the evidence failed to establish that he willfully and substantially had violated his probation. "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)). The State 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). Under similar circumstances, we have concluded that evidence of the defendant's failure to respond to knocking was not legally sufficient to establish that the defendant was not at home. See, e.g., Kegler v. State, 313 So. 3d 824, 826 (Fla. 2d DCA 2021) (concluding that the evidence was insufficient when it established that one officer had "r[u]ng the doorbell and knocked '[a]t least three times' " on the door of the defendant's apartment at 5:37 a.m. and another officer had called the defendant's cellphone (second alteration in original)); Edwards v. State, 296 So. 3d 986, 988 (Fla. 2d DCA 2020) (concluding that the evidence was insufficient when it established that the officer had "knocked and called into the house only from the front door" in the early hours of the morning and had failed to rouse anyone in the house); Brown v. State, 280 So. 3d 1117, 1118 (Fla. 2d DCA 2019) (concluding that the evidence was insufficient when it established that the officer had called the defendant's cell phone and "knocked on his apartment door 'several times very hard' " at 6:50 a.m. but received no answer); Brown v. State, 813 So. 2d 202, 203 (Fla. 2d DCA 2002) (concluding that the evidence was insufficient when it established that the officer had knocked on the door of the defendant's home with her flashlight at 2:00 a.m. and had 4 heard the television playing inside, but no lights had been on and no one had answered the door). We see no factual basis for departing from that line of cases here. The evidence established that despite there having been a car in the carport and a scooter in the yard, Officer Monetti had received no answer when she had knocked on the front door and an adjacent window of the house where Smith lived and that she had received no answer when she had tried to call him. 4 Neither officer testified as to how long they were at the house, how many times Officer Monetti had knocked, how hard she had knocked, or how loudly she had called his name. Neither officer knew where Smith's room was located in relation to the front door.5 There is no basis to infer that Smith even would have heard the officers, cf. Dietz v. State, 534 So. 2d 808, 809 (Fla. 2d DCA 1988) (concluding that the evidence was sufficient when it established that the officer had "knocked on the front door, knocked on the windows on all sides of the house, and knocked on the side door" at 4:20 p.m.); Hurst v. State, 941 So. 2d 1252, 1253 (Fla. 1st DCA 2006) (concluding that the evidence was sufficient when the officer knocked on the door and side of the defendant's trailer, "where she knew appellant's bedroom to be," with such force and persistence that it even woke the neighbors), let alone to infer further that because he did not respond to 4 Neither the trial court's characterization of the knocking as "bang[ing]" nor its statement that Officer Monetti had "walk[ed] to the side" of the house finds support in the evidence. 5 The State argues that the defense investigator's testimony that he had received a "prompt response" from "Wayne" when he knocked on the front door supported the trial court's finding that Smith violated his curfew. But the investigator did not testify that he had received a "prompt response," and in any event, we fail to see the relevance of what "Wayne" did when the investigator knocked forcefully on the door one morning six months after the night in question. 5 them, he must not have been home and was instead willfully and substantially violating his curfew.6 We conclude that the State failed to submit competent, substantial evidence that Smith willfully and substantially violated his probation by not being home on June 26, 2024, as alleged. Accordingly, we reverse and remand for vacatur of the revocation order and sentence and for reinstatement of probation. Reversed and remanded with instructions. KHOUZAM, J., Concurs. LUCAS, Chief Judge, Dissents with opinion. LUCAS, Chief Judge, Dissenting. 6 To the extent that the line of cases that we cite as factually analogous relied on whether the evidence could equally have supported an innocent explanation, see, e.g., Kegler, 313 So. 3d at 827 ("Evidence that gives rise to multiple reasonable inferences, only one of which establishes a violation, does not meet this standard [of proving a violation by the greater weight of the evidence]." (quoting Brown, 280 So. 3d at 1118)), we do question whether they remain good law in light of Bush v. State, 295 So. 3d 179, 200 (Fla. 2020) (rejecting the special standard that required the State's circumstantial evidence of guilt to be inconsistent with any "reasonable hypothesis of innocence" (quoting Knight v. State, 107 So. 3d 449, 457 (Fla. 5th DCA 2013))). Nonetheless, as we and other courts have recognized, even post-Bush, "the prohibition against pyramiding inferences remains a separate and distinct evidentiary principle" and remains intact, Young v. State, 51 Fla. L. Weekly D1407 (Fla. 2d DCA July 10, 2026) (and cases cited therein), and that is where the State's case against Smith fails, cf. Hurst, 941 So. 2d at 1254 (Ervin, J., dissenting) (interpreting our decision in Brown, 813 So. 2d at 202, to turn on "the lack of any reasonable inference, based solely on the evidence presented by the state, to support the conclusion that appellant had violated the curfew condition of her probation"). 6 The State alleged that a probationer wasn't home by his ten o'clock curfew in violation of a special condition of his probation. Two probation officers testified that they tried repeatedly to contact him at his residence at 10:25 p.m. They called his cell phone, they knocked on the door, one of them knocked on a window, they called out his name. The probationer testified he didn't hear them. The presiding judge didn't believe the probationer. Because there was competent, substantial evidence to support the judge's conclusion that the State proved by the greater weight of the evidence that Mr. Smith violated his curfew condition, I respectfully dissent. My reasoning derives from what our scope of review is supposed to entail. See Watson v. State, 399 So. 3d 378, 380 (Fla. 2d DCA 2024) ("We review a court's factual determination that a defendant committed a willful and substantial violation of the terms of probation for competent, substantial evidence." (citing Harris v. State, 318 So. 3d 645, 647 (Fla. 2d DCA 2021))). Reviewing a record for competent, substantial evidence is a deferential form of appellate review. The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. "Substantial" requires that there be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, "tending to prove") as to each essential element of the offense charged. 7 Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (quoting Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially)). "The competent substantial evidence standard defers to the trial court's judgment because the trial court is in the best position 'to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.' " Id. at 622 (emphasis added) (quoting In re Est. of Sterile, 902 So. 2d 915, 922 (Fla. 2d DCA 2005)). If two witnesses testify that they called a cell phone, knocked on a door, yelled, and knocked some more on the front window of a one-story residence where a probationer was supposed to be, and if the finder of fact, after hearing that probationer's testimony, concludes—as this judge did—that the probationer was lying about where he was, could it be "reasonably inferred" that the probationer wasn't home when he was supposed to be? See DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957) ("Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred."). Or was such a conclusion "ethereal, metaphysical, speculative, or merely theoretical?" See Savage, 120 So. 3d at 621 (quoting Dunn, 454 So. 2d at 649 n.11). No, it's the kind of conclusion all sorts of reasonable people would make. That said, I must acknowledge the precedents my colleagues are striving to follow. Our court has fashioned a peculiarly higher threshold for competent, substantial evidence when it comes to probation curfew violations. We could call it the "Loud Enough/Long Enough" (LELE) evidentiary standard for probation officers trying to contact probationers at home. Simply knocking on the front door with one's fist and a flashlight didn't cut it under LELE. See Brown v. State, 813 So. 2d 202, 8 204 (Fla. 2d DCA 2002). Phone calls, knocks, and calling out a probationer's name through an ajar front door, as was done in Edwards v. State, 296 So. 3d 986, 988 (Fla. 2d DCA 2020), wasn't loud or long enough either. Three knocks, a doorbell ring, and a cellphone call fell short of LELE in Kegler v. State, 313 So. 3d 824, 826 (Fla. 2d DCA 2021). Today, we're setting the LELE line somewhere past a phone call, a front door and window knock, and a call-out of Mr. Smith's name, but we really don't know where the line is. Which means we should probably stop trying to apply it. In my view, the precedents we're following on this point are nothing but a reflexive (and, frankly, confusing) application of the special circumstantial evidence standard of review that the Florida Supreme Court abolished in Bush v. State, 295 So. 3d 179, 200-01 (Fla. 2020) ("To apply this standard to a criminal case, an appellate court must 'view[] the evidence in the light most favorable to the State' and, maintaining this perspective, ask whether 'a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.'. . . This standard should now be used in all cases where the sufficiency of the evidence is analyzed." (quoting Rogers v. State, 285 So. 3d 872, 891 (Fla. 2019))). It is "fair game," so to speak, to reconsider LELE now that we have Bush's clarification, because (again, speaking frankly) in every case we've applied LELE, it appears that a panel of our court was simply searching for a plausible excuse as to why a probationer might have failed to answer a phone or a door.7 7 Cf. State v. Crose, 378 So. 3d 1217, 1244 (Fla. 2d DCA 2024) (en banc) (holding that the "recent controversy" rule of statutory construction was "no longer a viable method of construing statutory text in the wake of the Florida Supreme Court's decisions in Ham [v. Portfolio Recovery 9 Aside from the change in law post-Bush,8 there's a very real and practical problem with all of these LELE cases. Exactly how loud does a probation officer need to be, how long does he or she need to try to make contact with a probationer, before a court can permissibly conclude a Assocs., 308 So. 3d 942 (Fla. 2020)] and Conage [v. United States, 346 So. 3d 594 (Fla. 2022)]"). 8 I question the inference-pyramiding prohibition we and other district courts of appeal have continued to retain after Bush. See supra n.6 ("Nonetheless, as we and other courts have recognized, even post- Bush, 'the prohibition against pyramiding inferences remains a separate and distinct evidentiary principle,' and remains intact. . . ."); accord Garcia v. State, 373 So. 3d 1213, 1236 (Fla. 3d DCA 2023) (certifying question of great public importance whether the prohibition against pyramiding assumptions or inferences remains valid after Bush); State v. Huntley, 310 So. 3d 418, 419 (Fla. 4th DCA 2021) ("In light of Bush v. State, 295 So. 3d 179 (Fla. 2020), we are aware that the jurisprudence regarding inference stacking may evolve . . . ."). There really is no meaningful distinction to be drawn between relying entirely on circumstantial evidence (which, Bush held, should be treated no differently on appellate review) and drawing reasonable inferences. Indeed, inferences derive from circumstantial evidence. See Burks v. State, 613 So. 2d 441, 444 n.5 (Fla. 1993) (defining "circumstantial evidence" as "[f]acts and circumstances surrounding a transaction from which the jury or trier of the fact may infer other connected facts which reasonably follow, according to the common experience of [human]kind") (second alteration in original) (emphasis added) (quoting Ballentine's Law Dictionary 201 (3d ed. 1969))); Evans v. State, 26 So. 3d 85, 90 (Fla. 2d DCA 2010) ("Circumstantial evidence, by its very nature, is not free from alternate interpretations . . . . "). Aside from that, I've always had some misgivings about the pyramiding of inferences metaphor. Not only is it capable of manipulation (depending on how you choose to combine or divide a set of facts or how you formulate what is to be inferred), the whole exercise is overly reductive of how human beings process the world. Inferences are not Lego blocks or Jenga sticks. They're not bound by geometry, and they don't have to follow a building plan to reflect reality. Rather, as some have argued, human senses and cognition itself are inherently inferential. Cf. Jakob Hohwy, The Predictive Mind 13 (2013) ("[T]he brain must use inference to perceive—the brain is an inference mechanism."). 10 probationer isn't where they're supposed to be? If a P.O. bangs really hard on a front door (as opposed to just knocking on it, see supra. n.4), then calls a cell phone, knocks on a window, and maybe gives a couple of shrill whistles, is that going to be enough for LELE? What about a phone call, a front door knock, and ten solid taps on the probationer's bedroom window? Would an air horn help? No one really knows (and we're still not telling them) because apparently LELE is something to be felt, not described. Probation officers trying to discharge their duties, and VOP division judges trying to do theirs, deal with alleged curfew violations all the time. If we are going to continue to apply this LELE threshold of notice for a proper curfew check to be made, we really ought to tell everyone concerned what that threshold is. Or better still, we should just stop imposing an indiscernible notice requirement in the guise of a competent, substantial evidentiary review. Opinion subject to revision prior to official publication 11