## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
No. 1D 18

- 4786

_____________________________
G LEN J OSEPH D AVIS ,
Appellant,

v.

S TATE OF F LORIDA ,
Appellee.

_____________________________

On appeal from the Circuit Court for Nassau County

. Robert M. Foster , Judge

.
July 22, 2019

P ER C URIAM

.
Appellant claims that the trial court abused its discretion by revoking his sex offender probation after finding that he was “noncompliant.” We agree

, reverse the revocation of probation, and remand for further proceedings.

W e agree with Appellant that t he trial court’s finding that Appellant was “noncompliant” was legally insufficient insofar as the court failed to specify

— either orally or in writing

— each condition of probation that A ppel lant had violated and indicate that the violation was willful. See Del Valle v. State , 80 So. 3d 999, 1012 (Fla. 2011) (“Before a trial court can revoke probation, it must find that the probationer willfully and substantially violated a condition of probat ion.”); Crowley v. State , 124 So. 3d 434, 436 (Fla.2 1st DCA 2013) (stating that the appellate court is precluded from inferring a finding of willfulness from the trial court’s determination that the defendant violated his probation); Wilson v. State , 581 S o. 2d 255 (Fla. 1st DCA 1991) (reversing the revocation of probation where the trial court concluded that the probationer violated the “terms and conditions” of his probation without making a more specific oral pronouncement or entering a written revocatio n order reciting the specific violations).

W e also agree with Appellant that the S tate failed to prove that A ppellant willfully violated a substantial condition of his probation. At the probation violation hearing, the S tate presented testimony that A ppel lant violated his sex offender probation by failing to update his address with the Department of Highway Safety and Motor Vehicles (DHSMV). In Easterling v. State , 989 So. 2d 1285 (Fla. 1st DCA 2008), this court held that the failure to comply with this re quirement did not constitute a willful and substantial violation of probation where uncontradicted evidence demonstrated that the sex offender ma d e a good faith effort to comply and the only reason he failed to complete the registration was because he lack ed $10 to obtain a new license. Id. at 1287.

Here, Appellant testified that he was unable to update his driver’s license with the DHSMV because he did not have the money to pay the $31 fee. Althou gh defense counsel argued that a willful ness determination necessitate d a find ing that Appellant had the ability to pay, the court never made the requ ired analysis

. See Del Valle , 80 So. 3d at 10 0 2 ( holding that “before a trial court may properly revoke probation and incarcerate a probationer fo r failure to pay, it must inquire into the probationer’s ability to pay and determine whether the probationer had the ability to pay but willfully refused to do so”) (emphasis added)

. Instead of inquiring about Appellant ’s ability to pa y and whether his purported failure was willful , the court brusquely ended the hearing, foreclosing additional argument and testimony.

O n appeal, the S tate asserts that A ppellant’s inability to pay did not excuse his failure to comply because A ppellant had the

a bility to request an exemption from the fee under section 322.21(1)(f), Florida Statutes, which was added in 2014 and exempts applicants who are homeless or whose annual income is3 at or below the federal poverty level. Ch. 2014

- 216, §33, Laws of Fla. Becau se this statutory provision was not addressed below, it is unclear whether Appellant had the opportunity to obtain an exemption from the fee under section 322.21(1)(f). Accordingly, we reverse and remand for further proceedings to address this issue. See D eese v. State , 31 So. 3d 951, 953 (Fla. 1st DCA 2010).

The State also presented testimony at the hearing that Appellant violated his sex offender probation by failing to live at his parents’ residence. This was not a basis to revoke A ppellant’s probation b ecause (1) it was not charged in the probation violation affidavit; (2) although the court indicated at the beginning of the hearing that there was an unspecified “addendum” to the affidavit, no amended affidavit appears in the record; and (3) defense

coun sel noted that he had not received this “addendum” until the morning of the hearing. See Raimondi v. State , 253 So. 3d 749, 751 (Fla. 3d DCA 2018); Johnson v. State , 899 So. 2d 436, 438

- 39 (Fla. 4th DCA 2005). Furthermore, the S tate failed to prove that an y violation was willful where it was undisputed that (1) A ppellant’s parents refused to let A ppellant live with them; (2) A ppellant made a good faith effort to find alternative housing with the assistance of his probation officer; and (3) A ppellant could not afford the only suitable housing available for sex offenders because he was waiting for his social security disability t o be reinstated. See Selig v. State , 112 So. 3d 746, 749

- 50 (Fla. 2d DCA 2013); Newton v. State , 996 So. 2d 960, 962

- 63 (Fla. 2d DCA 2008).

In conclusion, we reverse the revocation of Appellant’s sex offender probation and remand for further proceedings on the issue of whether Appellant had the opportunity to obtain an exemption from the fee for updating the address on his driver’s license

.
R EVERSED and R EMANDED for further proceedings.

R OWE , J AY , and M.K. T HOMAS , JJ., concur

.4 ____________________________ _ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

Andy Thomas, Public Defender, and Megan Long , Assistant Public Defender, Tallahassee

, for Appellant.

Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee

, for Appellee.