IN THE DISTRICT COURT OF APP EAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

DAVELL KAVON KNIGHT, Appellant,

v. Case No. 5D15-2028 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed March 4, 2016

A ppeal from the Circuit Court for Osceola County, A . James Crane r , Judge. James S. Purdy, Public Defender, and Craig R. Atack, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, A ssistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J. Appellant, Davell Kavon Knight (“Knight”), appeals an order rev oking his probation following a nonjury trial. Knight argues that the trial court erred in finding that he willfully violated probation because the evidence elicited at trial subst antiated his defense of necessity. We conclude that the court did not abuse its discre tion in revoking Knight’s2 probation because the competent substantial evidence at trial s upports the court’s finding that Knight willfully violated his probation. Accordingly, we affirm. Pursuant to an earlier plea agreement, Knight was adjudicated g uilty of robbery by sudden snatching and was placed on a two-year term of probation . Approximately three months later, Knight was charged with violating probation by co mmitting the criminal offense of possession of a firearm by a convicted felon. 1 At a violation of probation trial, “[t]he State has the burden to prove by a preponderance of the evidence that the defendant violated a con dition of probation willfully and substantially.” Limbaugh v. State , 16 So. 3d 954, 955 (Fla. 5th DCA 2009) (citing Ballien v. State , 942 So. 2d 981, 983 (Fla. 5th DCA 2006) (additional citation omitted)). This burden of proof is interchangeably described a s the greater weight of the

evidence standard. See Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (citing

Hanania v. State, 855 So. 2d 92, 94 (Fla. 2d DCA 2003) (additional citatio ns omitted)). Section 790.23(1)(a), Florida Statutes (2014), makes it unlawfu l for any person convicted of a felony to have in his care, custody, or control any firearm. At trial, Knight conceded that he was both a convicted felon and in possession o f a firearm. Nevertheless, Knight asserted that he did not willfully violate his probation by possessing the firearm based upon the affirmative defense 2 of necessity.

1 Condition five of Knight’s probation required that he not viol ate any laws. Knight was also charged with violating other conditions of his probati on, but the State did not pursue these violations.

2 “An ‘affirmative defense’ is any defense that assumes the comp laint or charges to be correct but raises other facts that, if true, would estab lish a valid excuse or justification or a right to engage in the conduct in question.” State v. Cohen , 568 So. 2d 49, 51 (Fla. 1990).3 The necessity defense, oftentimes referred to as the justificat ion defense, recognizes “that there may be circumstances under which a convi cted felon’s possession of a firearm would be justified and his conduct declared not cr iminal.” Marrero v. State , 516 So. 2d 1052, 1054 (Fla. 3d DCA 1987) (footnotes omitted). The essential elements of the defense of necessity are that: (1) the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others, (2) the defendant did not intentionally or recklessly place himself in a situation in whi ch it would be probable that he would be forced to choose the criminal conduct, (3) there existed no other adequate means to avoid the threatened harm exc ept the criminal conduct, (4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended. Bozeman v. State , 714 So. 2d 570, 572 (Fla. 1st DCA 1998) (citing Marrero , 516 So. 2d at 1054 (additional citations omitted)). Knight testified at trial that he and various members of his f amily, including small children, were inside his home w hen a group of armed men came u ninvited to the home, banging on Knight’s garage door in a threatening manner. Knigh t testified that he asked the men to leave, but they refused to do so. Knight then went back into his home and emerged with a firearm. Gunshots were fired, and, although the re was a conflict in the evidence as to whether Knight or one of the men in the group fi red the shots, Knight testified that he went back inside his home and, thereafter, th rew the firearm over his neighbor’s fence. The court also heard testimony from two of Knight’s sisters who were present at Knight’s home when this incident occurred, as well as testimony from one of the4 individuals who was outside Knight’s house that evening and who denied that anyone in the group was in possession of a firearm. Having considered al l of the testimony and evidence, the trial court specif ically found that the first thr ee elements of the necessity defense had not been established and that the greater weight of the evidence established that Knight was in violation of his probation. As a reviewing court, we are tasked with determining whether th e trial court’s finding of a willful and substantial violation of probation is supported by competent

substantial evidence. Savage , 120 So. 3d at 621 (citations omitted). Competent substantial evidence has been defined by the Florida Supreme Co urt as “such evidence

as will establish a substantial basis of fact from which the fa ct at issue can be reasonably inferred.” Id . at 622 (quoting De Groot v. Sheffield , 95 So. 2d 912, 916 (Fla. 1957)). An appellate court defers to the trial court’s evaluation of the e vidence and its factual findings, recognizing that the trial court is in the best position to “we igh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the

witnesses . . . .” Shaw v. Shaw , 334 So. 2d 13, 16 (Fla. 1976); see also First Am. Farms, Inc. v. Marden Mfg. Co., 255 So. 2d 536, 540 (Fla. 1st DCA 1971) (“It is not the provinc e of an appellate court to reevaluat e conflicting evidence introd uced at the trial or to say what it would have done had it been sitting as a trier of the f acts.” (quoting Carolina Lumber Co. v. Daniel , 97 So. 2d 156, 158 (Fla. 1st DCA 1951))). Applying this defe rential standard, we conclude, without further elaboration, that compet ent substantial evidence supports the trial court’s order revoking probation. Section 948.06(2), Florida Statutes (2014), provides the trial court with the authority and discretion to revoke, modify, or continue probati on once the court has found5 a violation. See also Brown v. State , 455 So. 2d 635, 635–36 (Fla. 5th DCA 1984) (holding that when the trial court has found a violation of pro bation by the greater weight of the evidence, “the decision as to whether or not to revoke t he [defendant’s] probation is within the discretion of the trial judge” (citing Harris v. State, 453 So. 2d 228 (Fla. 5th DCA 1984))). We review a trial court’s decision to revoke prob ation under the familiar

abuse of discretion standard described in Canakaris v. Canakaris , 382 So. 2d 1197 (Fla. 1980); that is “[i]f reasonable [persons] could differ as to th e propriety of the action taken by the trial court, then the action is not unreasonable and the re can be no finding of an

abuse of discretion.” 382 So. 2d at 1203. We find no abuse of discretion in the trial court’s decision to revoke Knight’s probation. Lastly, our review of the record indicates that the written ord er on appeal does not set forth the specific condition of probation which was violate d. We therefore remand this matter for the entry of a proper order specifying the condition of probation violated. See Perez v. State , 958 So. 2d 1076, 1076 (Fla. 5th DCA 2007). AFFIRMED; REMANDED for entry of proper order. PALMER and ORFING ER, JJ., concur.