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Pinnock v. State

Florida Court of Appeals, Second District

January 12, 2018

EVERAD GLEN PINNOCK, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Polk County; Glenn T. Shelby, Judge.

          Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

          LaROSE, CHIEF JUDGE.

         Everad Glen Pinnock appeals the revocation of his probation and resulting sentences. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). As explained below, we affirm the revocation of his probation and his sentences; however, we remand for the trial court to enter a corrected revocation order.

         Background

         Mr. Pinnock was serving five years' probation for use of a computer to seduce a minor, see § 847.0135(3), Fla. Stat. (2006), and attempted lewd or lascivious battery on a child, see §§ 777.04(1), 800.04(4)(a), Fla. Stat. (2006). As a term of his probation, the trial court ordered that Mr. Pinnock could not have access to the internet without a treatment safety plan in place. Mr. Pinnock's probation officer instructed him that he could not possess a phone that could access the internet.

         Mr. Pinnock lived in sex offender housing where he was subject to annual searches. During one of those routine searches in January 2016, the probation officer learned that Mr. Pinnock owned a Samsung Galaxy S5 phone that contained applications for prohibited websites.

         The State alleged that Mr. Pinnock willfully and substantially violated conditions 7 and 55 of his probation. Condition 7 required that Mr. Pinnock comply with all instructions from his probation officer. Condition 55 prohibited Mr. Pinnock from accessing the internet without a safety plan. At the conclusion of the hearing, the trial court revoked Mr. Pinnock's probation and sentenced him to sixty-nine months in prison. Unfortunately, in announcing its ruling, the trial court did not specify which conditions of probation Mr. Pinnock violated. Approximately three months later, the trial court entered a written revocation order finding Mr. Pinnock in violation of conditions 7 and 55.

         Standard of Review

         Our standard of review involves a two-step process. Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013). "[W]e first assess whether the finding of a willful and substantial violation is supported by competent substantial evidence." Id. Then, we review the trial court's decision to revoke probation under an abuse of discretion standard. Id. at 623. "This standard of review rarely results in relief because it requires affirmance of the trial court order unless no reasonable judge could have reached the decision challenged on appeal." Clark v. State, 95 So.3d 986, 987 (Fla. 2d DCA 2012) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980)).

         Analysis

         Mr. Pinnock first argues that the State did not prove by the greater weight of the evidence that he accessed the internet on his phone. Thus, he disavows violating condition 55. The State presented no evidence to support its ...


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