                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT

MICHAEL A. CAMPOS,                             )
                                               )
              Appellant,                       )
                                               )
v.                                             )              Case No. 2D14-1867
                                               )
STATE OF FLORIDA,                              )
                                               )
              Appellee.                        )
                                               )

Opinion filed November 13, 2015.

Appeal from the Circuit Court for Lee
County; Bruce E. Kyle, Judge.

Howard L. Dimmig, II, Public Defender,
and Carol J.Y. Wilson, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Katherine Coombs
Cline, Assistant Attorney General,
Tampa, for Appellee.


CRENSHAW, Judge.


              Michael Campos challenges an order revoking his sex-offender probation

after the trial court found that he willfully and substantially violated a condition

prohibiting him from having contact with a minor. He argues that the State failed to

show the violation was willful and substantial. Because we agree that the trial court
erred in determining that Campos willfully and substantially violated the conditions of his

probation, we reverse and remand for the trial court to reinstate probation.

              Condition twenty-four of Campos's probation prohibited him from having

any contact with a child under the age of eighteen unless approved by the court.

Campos testified that he has never received approval for any supervised visits with

minors. The State alleged he violated this condition

              by having unsupervised contact with a child under the age of
              18, without the recommendation of a qualified practitioner
              and authorization of the sentencing court, and as grounds for
              belief that the offender violated his probation, [his probation
              officer] states that on 2/25/14, the offender did have
              unsupervised contact with a child under the age of 18, to wit:
              a white female approximately 2 years old, which officer
              observed in his room.

The State also alleged a violation of condition seven, which prohibited Campos from

using intoxicants to excess. After a hearing, the trial court found that the State did not

prove a violation of condition seven but that it did prove Campos willfully and

substantially violated condition twenty-four:

              The second indicia, the contact with children, I believe the
              State has met their burden and I find that it is a willful
              violation of his community control. It's the house he listed.
              It's community control. He's always supposed to be there
              unless – he has permission from the Department to be
              anywhere else. If he listed a home with children and he
              knew they were there and there was one in his room I think
              the State met their burden and I find that it's a willful
              violation.

              The trial court's finding of a willful and substantial violation is not

supported by competent, substantial evidence. See Savage v. State, 120 So. 3d 619,

621 (Fla. 2d DCA 2013). The State presented no evidence that Campos actually had

contact with a minor. While Campos did admit he knew there was a minor in the home



                                             -2-
at the same time he was in the home, there is no evidence that he ever had contact with

the minor or that the minor was ever in the same room with him. Moreover, there is

uncontroverted evidence that Campos was only at the home at the time of the violation

because his probation officer called him and told him to meet him there, as Campos had

just been released from jail that morning and the officer needed to conduct a home visit.

Once Campos received the call, he went to the home where he remained until the

probation officer arrived roughly fifteen minutes later. Campos testified that the only

reason the minor was at the home at that time was because her grandmother,

Campos's girlfriend, was picking up the last of their belongings as she and the minor left

the house in anticipation of his arrival from jail. Thus, to the extent that the violation

occurred simply because he was in the same house as a minor, this fact was actually

induced by Campos's compliance with his probation officer's commands.

              In Inman v. State, 684 So. 2d 899 (Fla. 2d DCA 1996), this court reversed

a similar order revoking community control because the evidence did not establish a

substantial and willful violation of the condition that the defendant not have contact with

a minor. In reversing the order, this court noted that there was no evidence that Inman

initiated the contact with the minors and the evidence actually established that he

attempted to avoid the prohibited contact. Id. at 900. Here, there is no evidence that

Campos even had contact with a minor, and there is uncontroverted evidence that he

was only present in the home at the same time as the minor because his probation

officer ordered him to go to the home. See also Wagland v. State, 705 So. 2d 1016,

1017 (Fla. 2d DCA 1998) (noting that the defendant's violation of a condition of

probation was neither willful nor substantial where "[t]here [was] no evidence in [the]




                                             -3-
record that Wagland initiated contact with the children, and nothing refute[d] the

testimony that the children were dropped off, unexpectedly, at his residence").

              Based on the record before us, there is not competent, substantial

evidence that a violation of condition twenty-four ever occurred, much less a willful and

substantial one. And as the State properly concedes, the order of revocation

erroneously reflects a violation of condition seven when the trial court orally determined

that the State had not proved that violation. Accordingly, we reverse the order of

revocation and remand for reinstatement of Campos's probation. See id. at 1018.

              Reversed and remanded.


ALTENBERND and NORTHCUTT, JJ., Concur.




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