IN THE DISTRICT COURT OF APPEAL 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 

Appeal from the Circuit Court 

for Osceola County, 

A. James Craner, 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, 

Assistant Attorney General, Daytona 

Beach, for Appellee. 

LAMBERT, J. 

Appellant, Davell Kavon Knight (“Knight”), appeals an order revoking 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 substantiated his defense of 

necessity. We conclude that the court did not abuse its discretion in revoking Knight’s 
2

probation because the competent substantial evidence at trial supports the court’s finding 

that Knight willfully violated his probation. Accordingly, we affirm. 

Pursuant to an earlier plea agreement, Knight was adjudicated guilty 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 committing 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 condition 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 as 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 citations omitted)). 

Section 790.23(1)(a), Florida Statutes (2014), makes it unlawful 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 of a firearm. 

Nevertheless, Knight asserted that he did not willfully violate his probation by possessing 

the firearm based upon the affirmative defense2 of necessity. 

 1 Condition five of Knight’s probation required that he not violate any laws. Knight 

was also charged with violating other conditions of his probation, but the State did not 

pursue these violations. 

2 “An ‘affirmative defense’ is any defense that assumes the complaint or charges 

to be correct but raises other facts that, if true, would establish 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 justification defense, 

recognizes “that there may be circumstances under which a convicted felon’s possession 

of a firearm would be justified and his conduct declared not criminal.” 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 which 

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 except 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 family, including small 

children, were inside his home when a group of armed men came uninvited to the home, 

banging on Knight’s garage door in a threatening manner. Knight 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 there was a conflict in the 

evidence as to whether Knight or one of the men in the group fired the shots, Knight 

testified that he went back inside his home and, thereafter, threw 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 the 
4

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 all of the testimony and 

evidence, the trial court specifically found that the first three 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 the 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 Court as “such evidence 

as will establish a substantial basis of fact from which the fact 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 evidence and its factual findings, 

recognizing that the trial court is in the best position to “weigh 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 province 

of an appellate court to reevaluate conflicting evidence introduced at the trial or to say 

what it would have done had it been sitting as a trier of the facts.” (quoting Carolina 

Lumber Co. v. Daniel, 97 So. 2d 156, 158 (Fla. 1st DCA 1951))). Applying this deferential 

standard, we conclude, without further elaboration, that competent 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 probation once the court has found 
5

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 probation by the greater weight 

of the evidence, “the decision as to whether or not to revoke the [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 probation 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 the propriety of the action taken 

by the trial court, then the action is not unreasonable and there 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 order on appeal does not 

set forth the specific condition of probation which was violated. 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 ORFINGER, JJ., concur.