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


                                           IN THE DISTRICT COURT OF APPEAL
                                           OF FLORIDA
                                           SECOND DISTRICT



DARYL COMOLLI,                   )
                                 )
           Appellant,            )
                                 )
v.                               )                     Case No.     2D14-652
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed December 3, 2014.

Appeal from the Circuit Court for
Hillsborough County; Chet A. Tharpe,
Judge.

Howard L. Dimmig, II, Public Defender,
and Tosha Cohen, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Helene S. Parnes,
Assistant Attorney General, Tampa,
for Appellee.



KELLY, Judge.

              Daryl Comolli appeals from the order revoking his probation. He argues

that the evidence was insufficient to support the finding that his failure to keep his
electronic monitoring device charged was a willful and substantial violation of a term of

his probation. We agree and reverse.

              At the violation of probation hearing, a records custodian from the

electronic monitoring company that monitors probationers' GPS tracking devices

explained that the company is alerted when a probationer's monitoring unit is not

sufficiently charged or when the probationer's ankle bracelet is too far from the

monitoring unit. Comolli's probation officer testified that a monitoring device needs to be

charged for at least four hours a day. Every time an alarm occurs, a probation officer

will contact the offender and ascertain the reason for the alarm. Over a two-month

period, the monitoring company notified the probation office that it had been alerted on

three occasions that Comolli was not properly charging his monitoring device. The

device never completely lost power. When Comolli was contacted as to his

whereabouts, he was at an approved location on each occasion. Two additional alarms

occurred when Comolli stepped out of range of the monitoring device. Comolli

explained to the monitoring company that the first "bracelet gone" alarm occurred at the

construction site where he was working and he walked away from the device for two

minutes. The second "bracelet-gone" incident occurred when Comolli accidentally

stepped out of range of the device for two or three minutes while doing yard work.

              Comolli testified that he had difficulty charging his device for four hours

because occasionally he did not have electricity at his home and could not go

elsewhere for that length of time because of his curfew. He could not go to friends'

houses where children lived because of the term of probation prohibiting him from being

around minors. He could not charge the device at the probation office because he was




                                            -2-
at work during the hours the probation office was open. Sometimes he went to a nearby

gas station or strip mall and used an outdoor outlet to charge his device for an hour or

two.

              On appeal from a ruling on a request to revoke probation, the appellate

court must first assess whether the finding of a willful and substantial violation is

supported by competent, substantial evidence. Savage v. State, 120 So. 3d 619, 621

(Fla. 2d DCA 2013). If the greater weight of the evidence supports a finding of a willful

and substantial violation, the appellate court must then consider whether the trial court

abused its discretion in revoking the appellant's probation. Id. at 623. "A defendant's

failure to comply with a probation condition is not willful where his conduct shows a

reasonable, good faith attempt to comply, and factors beyond his control, rather than a

deliberate act of misconduct, caused his noncompliance." Soto v. State, 727 So. 2d

1044, 1046 (Fla. 2d DCA 1999).

              In this case, the evidence of Comolli's failure to abide by the "Electronic

Monitoring Equipment Assignment Rules" is insufficient to constitute a willful and

substantial violation of probation. The record shows that Comolli's monitoring device

was not fully charged on only three occasions. The unit never completely lost power,

and there were no allegations that Comolli was in an unauthorized location or that he

deliberately removed or damaged his monitoring device. Comolli was completely "off

the radar" only on two occasions when he briefly stepped out of range of the monitoring

device. The State failed to show that Comolli's failure to comply with the monitoring

rules were deliberate acts of misconduct.




                                            -3-
              As this court has stated, "[t]he purpose of the electronic monitoring of

probationers, community controlees, and parolees is not punitive." Correa v. State, 43

So. 3d 738, 745 (Fla. 2d DCA 2010). Instead, the electronic monitoring enables officers

to supervise probationers subject to certain restrictions more efficiently at a lower cost

and helps to discourage behavior that is likely to lead to violations of supervision. Id.

"Of course, intentional disregard of the GPS monitoring rules, tampering with the

equipment, or actual violations of curfew or other activity restrictions will generally

amount to willful and substantial violations of the conditions imposed." Id. But where

the subject unintentionally fails to operate the equipment properly, the noncompliance

with the rules does not rise to the level of a willful and substantial violation of probation.

Id.; see also Garcia v. State, 701 So. 2d 607, 609 (Fla. 2d DCA 1997) ("A violation of

probation will not be found where the violation is due to negligence or ineptitude."); cf.

Soliz v. State, 18 So. 3d 1094, 1097 (Fla. 2d DCA 2009) (affirming a revocation of

probation based on the failure to submit to electronic monitoring where the defendant

had twenty-one "bracelet gone" alerts and ten insufficient battery charge alarms).

              Accordingly, because the record fails to support a willful and substantial

violation of probation, we reverse the order revoking Comolli's probation.

              Reversed.




DAVIS, C.J., and VILLANTI, J., Concur.




                                             -4-
