final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Nassau County. Robert M.
Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
claims that the trial court abused its discretion by revoking
his sex offender probation after finding that he was
"noncompliant." We agree, reverse the revocation of
probation, and remand for further proceedings.
agree with Appellant that the trial court's finding that
Appellant was "noncompliant" was legally
insufficient insofar as the court failed to specify-either
orally or in writing-each condition of probation that
Appellant had violated and indicate that the violation was
willful. See Del Valle v. State, 80 So.3d 999, 1012
(Fla. 2011) ("Before a trial court can revoke probation,
it must find that the probationer willfully and substantially
violated a condition of probation."); Crowley v.
State, 124 So.3d 434, 436 (Fla. 1st DCA 2013) (stating
that the appellate court is precluded from inferring a
finding of willfulness from the trial court's
determination that the defendant violated his probation);
Wilson v. State, 581 So.2d 255 (Fla. 1st DCA 1991)
(reversing the revocation of probation where the trial court
concluded that the probationer violated the "terms and
conditions" of his probation without making a more
specific oral pronouncement or entering a written revocation
order reciting the specific violations).
agree with Appellant that the State failed to prove that
Appellant willfully violated a substantial condition of his
probation. At the probation violation hearing, the State
presented testimony that Appellant violated his sex offender
probation by failing to update his address with the
Department of Highway Safety and Motor Vehicles (DHSMV). In
Easterling v. State, 989 So.2d 1285 (Fla. 1st DCA
2008), this court held that the failure to comply with this
requirement did not constitute a willful and substantial
violation of probation where uncontradicted evidence
demonstrated that the sex offender made a good faith effort
to comply and the only reason he failed to complete the
registration was because he lacked $10 to obtain a new
license. Id. at 1287.
Appellant testified that he was unable to update his
driver's license with the DHSMV because he did not have
the money to pay the $31 fee. Although defense counsel argued
that a willfulness determination necessitated a finding that
Appellant had the ability to pay, the court never made the
required analysis. See Del Valle, 80 So.3d at 1002
(holding that "before a trial court may properly revoke
probation and incarcerate a probationer for failure to pay,
it must inquire into the probationer's ability
to pay and determine whether the probationer had the ability
to pay but willfully refused to do so") (emphasis
added). Instead of inquiring about Appellant's ability to
pay and whether his purported failure was willful, the court
brusquely ended the hearing, foreclosing additional argument
appeal, the State asserts that Appellant's inability to
pay did not excuse his failure to comply because Appellant
had the ability to request an exemption from the fee under
section 322.21(1)(f), Florida Statutes, which was added in
2014 and exempts applicants who are homeless or whose annual
income is at or below the federal poverty level. Ch.
2014-216, §33, Laws of Fla. Because this statutory
provision was not addressed below, it is unclear whether
Appellant had the opportunity to obtain an exemption from the
fee under section 322.21(1)(f). Accordingly, we reverse and
remand for further proceedings to address this issue. See
Deese v. State, 31 So.3d 951, 953 (Fla. 1st DCA 2010).
State also presented testimony at the hearing that Appellant
violated his sex offender probation by failing to live at his
parents' residence. This was not a basis to revoke
Appellant's probation because (1) it was not charged in
the probation violation affidavit; (2) although the court
indicated at the beginning of the hearing that there was an
unspecified "addendum" to the affidavit, no amended
affidavit appears in the record; and (3) defense counsel
noted that he had not received this "addendum"
until the morning of the hearing. See Raimondi v.
State, 253 So.3d 749, 751 (Fla. 3d DCA 2018);
Johnson v. State, 899 So.2d 436, 438-39 (Fla. 4th
DCA 2005). Furthermore, the State failed to prove that any
violation was willful where it was undisputed that (1)
Appellant's parents refused to let Appellant live with
them; (2) Appellant made a good faith effort to find
alternative housing with the assistance of his probation
officer; and (3) Appellant could not afford the only suitable
housing available for sex offenders because he was waiting
for his social security disability to be reinstated. See
Selig v. State, 112 So.3d 746, 749-50 (Fla. 2d DCA
2013); Newton v. State, 996 So.2d 960, 962-63 (Fla.
2d DCA 2008).
conclusion, we reverse the revocation of Appellant's sex
offender probation and remand for further proceedings on the
issue of whether Appellant had the opportunity to obtain an
exemption from the fee for updating the address on his
and Remanded for ...