        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                     JOSEPH PATRICK DIMAIO SR.,
                             Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D15-607

                              [June 29, 2016]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No.
312009CF000912A.

  Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

PERLMAN, SANDRA, Associate Judge.

   Appellant Joseph Dimaio appeals from the order revoking his probation
and sentencing him to an eight-year prison sentence. Because the trial
court’s finding that Dimaio committed a willful and substantial violation
of his probation is not supported by competent substantial evidence, we
reverse.

    In October 2011, the trial court sentenced Dimaio to ten years of
probation for second-degree grand theft. Condition 3 of his probation
ordered him as follows: “You will remain in a specified place. You will not
change your residence or employment or leave the county of your residence
without first procuring the consent of your officer.” In July 2014, the state
filed an affidavit of violation of probation, alleging that Dimaio violated his
probation by changing his residence without first procuring his probation
officer’s consent.

   At the violation hearing, Dimaio’s probation officer testified that she
began supervising Dimaio on July 10, 2014. The probation officer testified
that Dimaio previously requested permission to move from the Quality Inn
to the Best Western, and she had given him permission to do so. On July
22, 2014, the probation officer knocked on Dimaio’s room number at the
Best Western, but there was no answer. When she asked for Dimaio at
the front desk, the clerk told her Dimaio had checked out on July 15. The
probation officer testified she had not given him permission to check out
and change his residence. The probation officer left a message on Dimaio’s
cell phone to call her as soon as possible. She did not have any record
that Dimaio left any messages indicating that he was moving.

   Dimaio testified that he moved out of the Best Western on July 15. In
the evening, he became ill and reported to St. Joseph’s Hospital. Dimaio
claimed that when he checked out, he left a message at the probation office
with the secretary or the administrator. Dimaio explained that he went to
the hospital because he had “neuropathy” in his legs and he was not able
to stand steadily. He admitted that part of the reason that he went to the
hospital was because he had been consuming alcohol, but denied that he
was drunk. After two days at St. Joseph’s Hospital, Dimaio went back to
the Best Western and then went to Memorial Hospital. After that, he went
to Town and Country Rehab for three weeks, which is located at Memorial
Hospital. Then, he went to Madison Rehabilitation Center in New Port
Richey. Dimaio claimed he left messages for his probation officer when he
went to Memorial Hospital. The staff at Town and Country Rehab Center
took his cell phone, so he could not do anything more to make his
probation officer aware of his whereabouts. Dimaio admitted he did not
receive permission from his probation officer before he went to rehab.

   The State argued that because Dimaio checked out of the Best Western
hotel when he left for the rehabilitation center, he changed his residence
without permission from his probation officer and therefore committed a
substantial and willful violation of probation. The trial court found that
Dimaio substantially and willfully violated the terms of his supervision,
and the court thus revoked his probation and sentenced him to eight years
in prison.

   An order revoking probation is reviewed for abuse of discretion and to
determine whether competent substantial evidence supports the decision.
Bauer v. State, 96 So. 3d 1063, 1066 (Fla. 4th DCA 2012). A trial court’s
determination that a violation of probation is willful and substantial “will
not be overturned on appeal unless the record shows that there is no
evidence to support it.” Riggins v. State, 830 So. 2d 920, 921 (Fla. 4th
DCA 2002).

   It is undisputed that Dimaio checked out of the Best Western hotel

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before he entered into the rehabilitation facility and that he did so without
permission from his probation officer. Additionally, the State does not
dispute Dimaio’s whereabouts when he checked out of the hotel, i.e., that
Dimaio temporarily attended and participated in the rehabilitation
programs as testified.

   The sole issue for this court is whether temporarily attending a
rehabilitation program constitutes changing one’s residence within the
meaning of the probation conditions when the probationer otherwise
resides in a hotel.

    Residence is defined as “[t]he place where one actually lives.” Black’s
Law Dictionary (10th ed. 2014); see also Weissbard v. State, 764 So. 2d
842, 843 (Fla. 3d DCA 2000) (defining residence as “the place in which one
lives”) (quoting The American Heritage Dictionary (2d Ed. 1982)).

   Prior to attending the rehab facility, Dimaio was residing at the Best
Western hotel. Before that, he was residing at the Quality Inn. Dimaio
neither owned a house nor rented an apartment. Dimaio’s choice of
residence was hotels. Had Dimaio owned a home or rented an apartment,
temporarily attending a rehabilitation program would not be considered
“chang[ing] your residence” because he would be returning to his house or
apartment. In this case, because Dimaio’s residence was a hotel, in order
to keep his room, he would have had to continue to pay for it while he was
temporarily attending the rehab facility. This is an unreasonable condition
placed upon a person who resides in a hotel versus a home or apartment.

    In Hugan v. State, 190 So. 3d 210 (Fla. 2d DCA 2016), the trial court
revoked the defendant’s community control after he was not at home
during a house check because he was working an extra shift. The Second
District reversed, finding “no evidence that [the defendant’s] technical
violation of the terms of his community control was a result of his reckless
disregard for the terms of his supervision or that he was unfit for continued
supervision.” Id. at 212. The court concluded that the defendant’s failure
to contact his community control officer about the extra shift was at worst
due to his own negligence, which would not support a violation of
probation.

    Similarly, in the instant case, there is no evidence that Dimaio engaged
in reckless disregard for the terms of his probation or that he was unfit for
continued supervision. Dimaio called as soon as his phone was returned
and let his probation officer know his whereabouts. Additionally, he
turned himself in when he was told there was a warrant.


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   Further, Dimaio testified that after he was released from the hospital
the first time, he returned to the Best Western, thus indicating the hotel
was/is his residence. No evidence in the record shows that he was not
going to return to the hotel after rehab. Because he intended to keep the
hotel as his residence and left only temporarily to attend rehab, no
competent substantial evidence exists to show that he changed his
residence.

   In sum, because the State failed to prove that Dimaio committed a
substantial and willful violation, the trial court’s revocation of his
probation was an abuse of discretion. Accordingly, we reverse and remand
with instructions for the trial court to vacate the prison sentence and
reinstate Dimaio’s probation.

   Reversed and remanded.

DAMOORGIAN and FORST, JJ., concur.

                           *         *       *

   Not final until disposition of timely filed motion for rehearing.




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