           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D18-1227
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TROY GREGORY KING,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Alachua County.
James M. Colaw, Judge.

                          April 22, 2019


WOLF, J.

     Appellant challenges the trial court’s order that found him in
violation of three conditions of his probation and revoked but
reinstated probation with modified terms. We agree with
appellant that there was no competent, substantial evidence to
support the trial court’s findings that appellant willfully and
substantially violated these conditions and reverse.

     First, the court found appellant willfully and substantially
violated the condition of his probation that required him to wear
an electronic monitoring device. The State presented evidence
that on one occasion, appellant moved away from the device for
approximately five minutes before returning to it. He told his
probation officer that he left the device on the charger in the
welcome center of the homeless shelter where he resided and
walked into the cafeteria. When appellant was contacted by the
monitoring company, he told them what happened. The State
failed to present any evidence that appellant intentionally
violated the electronic monitoring rules. Evidence that a
probationer walked away from a monitoring device for a brief
period of time is not competent, substantial evidence of a
substantial and willful violation. See Channell v. State, 200 So.
3d 247, 248 (Fla. 1st DCA 2016); Comolli v. State, 152 So. 3d 119,
120 (Fla. 2d DCA 2014); Correa v. State, 43 So. 3d 738, 745 (Fla.
2d DCA 2010). Thus, we reverse this finding.

     Second, the court found appellant willfully and substantially
violated the condition of his probation that he complete sex
offender treatment. Appellant testified that he tried to attend his
first appointment for his initial assessment, but he was told it
would cost $90. He tried to make a partial payment of $40, which
was all the money that he had, but he was told he had to pay the
full amount up front. Appellant stated he did not bother going the
next time he had an appointment because he had not been able to
save up any more money. He stated he was homeless and jobless,
despite actively searching for employment.

     The probation officer testified and confirmed that appellant
would have been required to pay $90 for his initial assessment.
To her knowledge, the money was due up front and partial
payments were not accepted. Both times appellant missed an
appointment, he told her it was because he could not afford the
fee. She stated appellant was homeless and unemployed, though
he had completed a referral to an employment specialist and had
completed job search logs on his own, documenting that he was
searching for a job.

     “‘In probation revocation proceedings for failure to pay a
monetary obligation as a condition of probation, the trial court
must find that the defendant’s failure to pay was willful—i.e., the
defendant has, or has had, the ability to pay the obligation and
purposefully did not do so.’” Aviles v. State, 165 So. 3d 841, 843
(Fla. 1st DCA 2015) (quoting Del Valle v. State, 80 So. 3d 999,
1012 (Fla. 2011)). The initial burden is on the State to prove


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ability to pay, and once it does so, the burden shifts to the
defendant to prove inability to pay. Del Valle, 80 So. 3d at 1013.

     The failure to attend sex offender treatment is not willful if
the probationer failed to attend due to a lack of ability to pay. See
Selig v. State, 112 So. 3d 746, 750 (Fla. 2d DCA 2013) (reversing
a finding of a violation of probation for failure to attend sex
offender treatment in part because it was clear from the record
that the probationer lacked the ability to pay for the sessions,
and the record was “not clear whether . . . his lack of financial
ability to pay the provider prevented his receiving the
treatment”). Cf. Adams v. State, 979 So. 2d 921, 928 (Fla. 2008)
(affirming finding of violation of probation for failure to attend
sex offender treatment where there was evidence in the record
supporting the trial court’s finding that the defendant had the
ability to pay).

     Because it was undisputed that appellant failed to attend sex
offender treatment due to his lack of ability to pay, his failure to
attend treatment was not willful. Thus, we reverse this finding.

     Third, the court found appellant was in violation of the
condition of his probation requiring him to pay $4.50 a day for
the cost of electronic monitoring, for which he was in arrears of
over $800. Consistent with our finding above, the State failed to
put forth any evidence that appellant had the ability to pay a
$4.50 daily monitoring cost. Thus, this finding was not supported
by competent, substantial evidence.

    Because the record fails to support a finding of a willful and
substantial violation of probation, we REVERSE the order
revoking appellant’s probation.

WINOKUR, and JAY, JJ., concur.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Joel Arnold, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Frank X. Moehrle and Amanda
Stokes, Assistant Attorneys General, Tallahassee, for Appellee.




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