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Brown v. State

Florida Court of Appeals, First District

June 1, 2017

DAVID LEE BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

          NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Bay County. Brantley S. Clark, Judge.

          Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.

          WOLF, J.

         Appellant 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.

         Facts

         In 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 excess."

         At a 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.

         Appellant's 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.

         Appellant 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.

         Appellant 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.

         The 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 ...


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