FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Bay County. Brantley S.
Thomas, Public Defender, and Joel Arnold, Assistant Public
Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Quentin Humphrey, Assistant
Attorney General, Tallahassee, for Appellee.
challenges the trial court's order revoking his probation
for two violations: committing the new law violation of
failure to register as a sex offender by failing to register
a cell phone number, and using intoxicants to excess.
Appellant raises several arguments, but we find only two
merit discussion: (1) whether the State presented sufficient
evidence that appellant used the cell phone to the extent
that he was required to register it; and (2) whether the
probation officer's testimony that appellant was
intoxicated during a visit was sufficient to show that he
used intoxicants to excess. We find there was sufficient
evidence on both counts and affirm.
November 2014, appellant pled no contest to the offense of
failure to register as a sex offender, and the court
sentenced him to 60 months' probation. In February 2016,
the State filed an affidavit of violation of probation
alleging that appellant both committed the new law violation
of failure to register as a sex offender and violated the
probation condition that he "not use intoxicants to
hearing, appellant's probation officer testified that she
and a United States marshal conducted a drop-in visit on
appellant. The probation officer testified that upon arrival,
she saw a white cell phone sitting next to appellant. She
"asked him could I see his cell phone, and he handed me
that" white phone. Appellant said "the phone
belonged to his wife and he did not put it in his name
because then he would have to register it." The U.S.
marshal similarly testified that appellant said "the
phone was in his wife's name, and that they did that
purposefully, because if they left it in his wife's name
he would not have to register it."
Additionally, appellant's probation officer testified
that appellant seemed intoxicated during the encounter. When
she asked him to produce his identification, he handed her
his credit card. She testified that "[h]is eyes were
glassed over and he was leaning back and forth. He said he
had just drunk a couple of beers." She stated there was
a beer sitting on the ground right next to appellant. There
was also catnip on the couch, and someone had used the cell
phone to conduct a search on the effects of smoking catnip.
wife testified that she had two phones, one of which was the
number that appellant had registered as belonging to him and
the other she used for herself. She testified that on the day
in question, her phone was dead, so she left it on the
charger and took appellant's phone. On cross-examination,
she stated that although she usually left appellant with the
phone that was registered as belonging to him, sometimes they
would swap and he would use her phone. She testified that
appellant would text and call his friends on her phone.
testified the cell phone had been in his hand when he
answered the door because he had been playing a game on it,
and the probation officer immediately asked for it. Appellant
testified he told the officer and the marshal that the phone
belonged to his wife, and he had been drinking and did not
understand their questions. When asked if it was
"unusual" for him to use his wife's phone, he
testified that he "play[ed] the games all the time"
on it. He further testified that when he was at home, his
wife would leave the phone so that she could call him and
wake him up for work. He stated that "sometimes" he
would take the phone to work with him so that he and his wife
could call each other.
conceded that although he claimed the phone found in his
possession belonged to his wife, her name was listed in the
phone's contacts. The number that was listed as belonging
to her was the number that appellant had registered as his
own phone number.
court found that appellant violated the terms of his
probation both by committing the new law violation of failure
to register as a sex offender and by using intoxicants to
excess. The court revoked ...