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Niemi v. State

Florida Court of Appeals, Fifth District

November 15, 2019

MICHAEL BRYAN NIEMI, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

          Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

          James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.

          PER CURIAM.

         Michael Niemi pled no contest to lewd or lascivious conduct, and the trial court placed him on sex offender probation. Upon his release from jail, he went to the residence approved by the probation officer-the home where he resided prior to his arrest-only to learn that his Wife had sold it.

         Consequently, Niemi's probation officer placed him with a sponsor at a residence on Pompeo Avenue in Citrus County. Niemi disliked that living arrangement and requested to move to a residence on Rock Crusher Road in Citrus County. The probation officer approved the move but instructed Niemi that he could not move into the new residence until the residence was visually inspected and approved. Despite that instruction, Niemi moved.

         Niemi was subsequently charged with and found guilty of violating four conditions of his probation: changing his residence without consent (condition 3); violating Florida law by failing to register his change of address within 48 hours (condition 5); failing to comply with instructions and truthfully answer his probation officer's questions (condition 9); and failing to abide by a mandatory curfew (condition 14). On appeal, Niemi argues that there was insufficient evidence to support the lower court's findings that he violated conditions 5 and 9. We agree.

         Related to the violation of condition 5, the affidavit of violation of probation alleged:

On 12/2/2018 [Niemi] was arrested by the Citrus County Sheriff's Office for the criminal offense of Sex Offender Failure to Report Name /Address Change within 48 Hours. [Niemi] was arrested after a Registration Check and a review of the Florida Department of Law Enforcement Sexual Offenders revealed that [he] did not report an address or address change within the mandated 48-hour time period required by Florida Statute.

         The evidence at the violation of probation hearing does not demonstrate that Niemi violated the reporting requirements of section 943.0435, Florida Statutes (2018). Section 943.0435 allowed Niemi 48 hours to notify the Sheriff's Office of his relocation. The probation officer and Niemi testified that Niemi moved into the Rock Crusher Road residence on December 1.[1] Citrus County law enforcement officers arrested Niemi the following day for failing to comply with section 943.0435. Because Niemi had 48 hours to report his change of residence, his arrest for violating section 943.0435 on December 2 was premature and could not form the basis for finding that he willfully and substantially violated his probation.

         As to Niemi's alleged violation of condition 9, the affidavit of violation of probation stated:

[B]y failing to comply with all instructions given to [Niemi], and to promptly and truthfully answer all inquiries directed by the probation officer, and as grounds for belief that [he] violated his probation, Officer Scrivens states that on 12/2/2018, [Niemi] did answer untruthfully an inquiry by the probation officer as to the residence [he] provided to the Department, of which [he] was ...

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