        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         MANUEL F. PALANCAR,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D14-3935

                                [July 6, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Karen     M.    Miller,   Judge;   L.T.    Case    No.
502011CF009077BXXXMB.

   Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, C.J.

   Manuel Palancar appeals the orders revoking probation and imposing
a prison sentence. We agree that the trial court erred in finding that the
state proved the new offense of disorderly intoxication, and we reverse and
remand for the court to reinstate probation.

   Pursuant to a negotiated plea, Palancar was placed on probation for a
drug offense. Among other terms, the probation order provided, by
numerically designated paragraphs, the following:

      (5) You will live without violating any law. . . .

      ....

      (7) You will not use intoxicants to excess . . . .

      ....
      (9) You will . . . comply with all instructions your officer may
      give you.

   In special condition 3, the order placing Palancar on probation also
provided that Palancar would pay for drug testing.

    About one year after Palancar was placed on probation, the state
alleged that he violated special condition 3 by failing to pay for drug
testing; violated condition 5 of his probation by committing the offense of
disorderly intoxication; violated condition 7 of his probation by using
intoxicants to excess, as evidenced by his arrest for disorderly intoxication;
and violated condition 9 of his probation by failing to follow instructions
(not to violate the law), as evidenced by his arrest for disorderly
intoxication.

   At the final VOP hearing, two witnesses testified for the state. The
probation officer confirmed that he had explained the terms of probation
to Palancar. Officer Cadselie Serralta testified as follows. He was off duty
but working as a security officer at a restaurant. He was sitting on the
edge of the street bordering the parking lot when a white truck, driven by
Palancar, pulled into the parking lot and almost hit him. Palancar and a
woman passenger exited the truck and entered the restaurant.

    About ten minutes later, Palancar left the restaurant. A restaurant
employee approached the officer and told him “they couldn’t serve him and
his girlfriend . . . because they were too intoxicated.” The manager and
employees wanted the officer to intervene because Palancar was getting
ready to drive, and the employees had observed Palancar and his girlfriend
fall off of a stool in the restaurant.

   Officer Serralta approached the truck and observed Palancar arguing
with the woman. At that time, there were about three or four people
“hanging out just south” of where Palancar was standing, “and then
behind us towards the entrance of the restaurant and west of . . . where
his vehicle was parked.” Serralta was not aware of how many people were
in the restaurant other than Palancar, the woman, and the restaurant
employees.

   Officer Serralta could smell alcohol on Palancar’s breath. He told
Palancar that he could not drive. Palancar was initially compliant but then
he became “a little loud” and was “causing a commotion,” leading Serralta
to direct him to “step aside, step back,” and “calm down, be quiet.”
Palancar “was yelling and did cause a disturbance where we had
onlookers.” Officer Serralta acknowledged that he was familiar with

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Palancar from previous encounters and that Palancar speaks loudly.
When he told Palancar he would have to take a taxi, Palancar became
“belligerent” and threatened “to sue us and that type of stuff.” Officer
Serralta arrested Palancar for disorderly intoxication.

   The trial court found that Palancar violated conditions 5 (commit no
new criminal offenses) and 9 (comply with the probation officer’s
instructions to not commit a new crime), but that the state did not prove
a violation of condition 3 (pay for drug testing). The court simply failed to
address condition 7 (refrain from using intoxicants to excess).

    The court sentenced Palancar to a prison term and in response to a
motion to correct sentencing error, the court entered a written revocation
order, which revoked Palancar’s probation and found him in violation of
conditions 5, 7, and 9, but not 3. In response to still another motion to
correct sentencing error, the court “corrected” the revocation order to
reflect that Palancar violated only conditions 5 and 9.

    On appeal, Palancar argues that the state did not prove disorderly
intoxication where there was no evidence that he caused a public
disturbance or endangered the public safety, and thus the trial court erred
in finding he violated conditions 5 and 9.

   “While a trial court has broad discretion to determine whether a person
has willfully and substantially violated his probation, findings supporting
that determination must be supported by competent, substantial
evidence.” White v. State, 170 So. 3d 144, 145 (Fla. 1st DCA 2015).

    The state alleged Palancar violated his probation by, among other
things, committing the new offense of disorderly intoxication and failing to
follow his probation officer’s instructions by committing the new offense.

   Section 856.011, Florida Statutes, provides in pertinent part: “No
person in the state shall be intoxicated and endanger the safety of another
person or property, and no person in the state shall be intoxicated or drink
any alcoholic beverage in a public place or in or upon any public
conveyance and cause a public disturbance.” § 856.011(1), Fla. Stat.
(2014).

    “[U]nder the plain language of the statute, ‘disorderly intoxication’ is
defined and proscribed in two distinct ways: (1) where the person is
intoxicated and endangers the safety of another person or property; and
(2) where the person is intoxicated or drinks alcohol in a public place or
on a public conveyance and causes a public disturbance.” Royster v. State,

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643 So. 2d 61, 64 (Fla. 1st DCA 1994).

   Palancar does not dispute there was sufficient evidence of his
intoxication. At issue in the instant case is whether the state proved that
Palancar caused a public disturbance or endangered the public safety.
Palancar’s belligerent behavior toward the officer is not, standing alone,
sufficient to establish that he was causing a public disturbance. See
Jernigan v. State, 566 So. 2d 39, 40 (Fla. 1st DCA 1990) (holding that
appellant’s use of profanity and aggressive behavior did not amount to
disorderly intoxication); Blake v. State, 433 So. 2d 611, 612 (Fla. 1st DCA
1983) (holding that appellant’s “actions in talking loudly and flapping his
arms did not violate the disorderly intoxication statute”).

    The state argues that the evidence established that a crowd formed as
a result of Palancar’s behavior. Officer Serralta initially testified that there
were two groups of people near the scene at the time of Palancar’s conduct.
This, standing in isolation, would not have established a public
disturbance, because the record is devoid of any evidence that people
gathered as a result of Palancar’s conduct or that they were in any way
affected by his conduct. However, Serralta also testified that Palancar
“was yelling and did cause a disturbance where we had onlookers.”
Evidence that an intoxicated person’s behavior draws a crowd may be
sufficient to establish that an intoxicated person has caused a public
disturbance. See Cross v. State, 374 So. 2d 519, 520-21 (affirming
disorderly intoxication conviction where evidence showed that defendant’s
aggressive behavior toward police officer and his loud use of profanity drew
“[s]everal persons . . . to the scene”).

   The officer’s testimony, taken in its entirety, did not make it clear that
onlookers were drawn to the scene due to Palancar’s behavior or were
otherwise affected by his behavior. See C.P. v. State, 644 So. 2d 600, 602
(Fla. 2d DCA 1994) (finding there was no evidence the public was disturbed
where “there was testimony that several witnesses heard the [defendant’s]
speech, [but] there was no testimony that anyone filed a complaint
concerning it”); K.G. v. State, 338 So. 2d 72, 74 (Fla. 3d DCA 1976) (finding
the disorderly conduct statute was constitutionally applied to a juvenile
where an officer testified that her loud use of obscenities caused people to
come out of their houses and to join the juvenile in yelling profanities at
the officers). 1

1 We recognize that these opinions involve disorderly conduct rather than
disorderly intoxication, but we find the analysis contained in the opinions helpful
with regard to the element of “cause a public disturbance.” Similar to the
disorderly intoxication statute, the disorderly conduct statute prohibits conduct

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   The state also argues that it proved disorderly intoxication by
establishing that Palancar’s conduct endangered the public. It points to
the evidence that Palancar almost hit the officer with his truck. To his
credit however, Officer Serralta acknowledged that he could not tell
whether Palancar’s intoxication caused him to almost hit the officer.
Officer Serralta testified that he decided not to conduct a DUI investigation
and that he gave Palancar “the benefit of the doubt because at that point
you know I was standing at the side at the edge of the road.”

    Because the state did not establish that Palancar committed a new
offense, it logically follows that the trial court should not have revoked
Palancar’s probation for his failure to follow instructions (to not commit
new violations of the law), as that ground for violation was patently based
on Palancar’s arrest for the new offense. See Robinson v. State, 907 So.
2d 1284, 1286 (Fla. 2d DCA 2005) (“[I]t is improper to revoke probation
solely on proof that the probationer has been arrested.” (citation omitted)).

   Special condition 7 (no use of intoxicants to excess) was—perhaps
inadvertently—“lost in the shuffle” and never made it into the trial court’s
final order finding a probation violation and therein revoking probation.
As such, there was no finding of a violation of special condition 7.

   Reversed and remanded for reinstatement of probation.

TAYLOR and MAY, JJ., concur.

                             *         *          *

   Not final until disposition of timely filed motion for rehearing.




which has some effect on the public. See § 877.03, Fla. Stat. (2016) (“Whoever
commits such acts as are of a nature to corrupt the public morals, or outrage the
sense of public decency, or affect the peace and quiet of persons who may witness
them, or engages in brawling or fighting, or engages in such conduct as to
constitute a breach of the peace or disorderly conduct, shall be guilty of a
misdemeanor of the second degree[.]”).

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