FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-4786

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GLEN JOSEPH DAVIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Nassau County.

Robert M. Foster, Judge.

July 22, 2019

PER CURIAM.

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.

We agree with Appellant that the 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 Appellant 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 probation.”); 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 So. 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 revocation order reciting the specific violations). 

We also agree with Appellant that the State failed to prove 

that Appellant willfully violated a substantial condition of his 

probation. At the probation violation hearing, the State presented 

testimony that Appellant 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 requirement did not constitute a willful and 

substantial violation of probation where uncontradicted evidence 

demonstrated that the sex offender made a good faith effort to 

comply and the only reason he failed to complete the registration 

was because he lacked $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. Although defense counsel argued that a 

willfulness determination necessitated a finding that Appellant 

had the ability to pay, the court never made the required analysis. 

See Del Valle, 80 So. 3d at 1002 (holding that “before a trial court 

may properly revoke probation and incarcerate a probationer for 

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 pay and whether his purported failure 

was willful, the court brusquely ended the hearing, foreclosing 

additional argument and testimony.

On appeal, the State asserts that Appellant’s inability to pay

did not excuse his failure to comply because Appellant had the 

ability 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 is 
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at or below the federal poverty level. Ch. 2014-216, §33, Laws of 

Fla. Because 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 Deese 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 Appellant’s 

probation because (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 

counsel 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 State failed to prove that any 

violation was willful where it was undisputed that (1) Appellant’s 

parents refused to let Appellant live with them; (2) Appellant made 

a good faith effort to find alternative housing with the assistance 

of his probation officer; and (3) Appellant could not afford the only 

suitable housing available for sex offenders because he was 

waiting for his social security disability to 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.

REVERSED and REMANDED for further proceedings.

ROWE, JAY, and M.K. THOMAS, 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 Megan Long, Assistant Public 

Defender, Tallahassee, for Appellant.

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

Attorney General, Tallahassee, for Appellee.