DILEONARDO DOC T97264 v. STATE (2020)

David M. Dileonardo challenges the trial court's order and corrected order revoking his probation based on alleged violations of standard conditions four and five of his order of probation. Based on Dileonardo's arguments and the State's well-taken concession, we reverse the orders and direct the trial court to order Dileonardo's immediate release.

Condition four prohibits a probationer from possessing, carrying, or owning a firearm or weapon. Here, a probation officer found bullets in Dileonardo's apartment while he was outside the apartment. This case is indistinguishable from Livingstone v. State, 268 So. 3d 252 (Fla. 2d DCA 2019), in which we held that “the possession of ammunition is not enough to establish a violation of standard probation condition four.” Id. at 253.¹ We are therefore compelled to reverse the trial court's orders of revocation as to this condition.²

Condition five of the standard probation order states: “You will live without violating any law. A conviction in a court of law is not necessary for such a violation of law to constitute a violation of your probation ․” However, in Robinson v. State, 907 So. 2d 1284, 1286 (Fla. 2d DCA 2005), we held that “it is improper to revoke probation solely on proof that the probationer has been arrested.” Rather, “[t]he proper standard for finding a new law violation is whether a preponderance of the evidence establishes that the probationer committed the charged offense or offenses.” Id. at 1287.

Here, no offense—i.e., no new law violation—was identified in the probation officer's affidavit of violation of probation. Rather, the sole allegation was that Dileonardo had been arrested “for the criminal offense of Violation of Probation, [section] 948.06[, Florida Statutes (2016)³ ].” Presumably, the written allegation was intended to refer to whatever chargeable offense, if any, was associated with condition five. But the literal phrasing of the allegation was such that it identified the violation as one of violating probation, apparently in reference to the violation described in the allegation concerning condition four.⁴ Given the circularity of the allegation, as well as the fact that the allegations made and evidence presented as to condition four did not represent a violation of that condition, we agree with the parties that the State failed to demonstrate a violation of condition five. We are therefore compelled to reverse the trial court's orders of revocation as to that condition.

Accordingly, we reverse the order and corrected order of revocation of probation and remand to the trial court to order Dileonardo's immediate release in case number 17-CF-9385. We direct the clerk to issue our mandate with this opinion. See Smith v. State, 218 So. 3d 996, 999 (Fla. 2d DCA 2017).

Reversed and remanded with instructions.

FOOTNOTES

1.   As in Livingstone, notwithstanding that the ammunition argument was not preserved in the trial court, “revoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error.” 268 So. 3d at 253 n.1 (quoting Odom v. State, 15 So. 3d 672, 678 (Fla. 1st DCA 2009)).

2.   The bullets allegedly belonged to Dileonardo's recently deceased uncle, with whom he had been living. On appeal the parties argue as to whether the State had proven Dileonardo's constructive possession of the bullets. We do not reach this issue, as the principle of Livingstone renders it moot.

3.   Section 948.06 governs, inter alia, violations and revocations of probation.

4.   In Robinson, the affidavit did at least allege new substantive law violations. 907 So. 2d at 1286.

SALARIO, Judge.

NORTHCUTT and SILBERMAN, JJ., Concur.