Jose Orta v. The State of Florida

• Court: District Court of Appeal of Florida
• Decided: February 21, 2024
• Docket: 2022-2024
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 21, 2024. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D22-2024 Lower Tribunal Nos. F15-4991 & F14-24606 ________________

Jose Orta, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Ramiro C. Areces, Judge.

Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Sandra Lipman, Senior Assistant Attorney General, for appellee.

Before LOGUE, C.J., and SCALES and GORDO, JJ.

LOGUE, C.J.

Jose Orta appeals the trial court’s order which found that he willfully

violated a condition of his probation by associating with a person engaging in criminal activity. He argues that the trial court did not have competent

substantial evidence to support its finding. We disagree and affirm.

BACKGROUND

The trial court sentenced Orta to seven years of probation after he pled

guilty to several crimes. While he was on probation, Orta’s probation officer

filed an affidavit attesting that Orta violated a condition of his probation –

associating with a person engaged in criminal activity. The trial court held an

evidentiary hearing to decide the issue.

At the hearing, the State submitted evidence of the violation, which

included testimony from police officer witnesses. The officers’ testimony can

be summarized as follows.

The officers were on patrol when they walked down an alleyway

alongside an apartment building. Behind the building, in its parking lot, they

encountered Orta and a man named Daniel Machado sitting in a group,

“shoulder to shoulder,” with only one person between Orta and Machado. As

the officers approached, they heard the group chatting and observed

Machado holding a glass pipe while using a pushrod on that pipe. One of the

officers testified that based on his training and experience, Machado was

using the pushrod to either push a rock of cocaine into the glass pipe, which

he believed was a crack pipe, or clean out the pipe to prepare it for another

2 rock. As the officers approached, Orta spotted them and yelled out, “[Y]o, la

policia.” The officers then saw Machado look at them and move the hand

that held the pipe.

Based on this evidence, the trial court found that Orta willfully violated

a condition of his probation by associating with Machado while he was

engaging in a crime. Orta timely appealed.

ANALYSIS

We review the trial court’s finding that Orta willfully associated with a

person engaged in criminal activity by evaluating whether the finding is

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

619, 621 (Fla. 2d DCA 2013).

Association is akin to companionship. See Holmes v. State, 988 So.

2d 1252, 1254 (Fla. 5th DCA 2008). Although the type of conduct that

establishes association is varied, generally association exists if a defendant

spends a reasonably long time with someone and the defendant is

comfortable around the other person. For an association to be willful, a

defendant needs to be “aware” that the individual he is associating with is

engaged in criminal activity during the association. See Williams v. State,

163 So. 3d 1257, 1258 (Fla. 1st DCA 2015).

3 The evidence presented here was competent and substantial enough

to show that Orta associated with Machado and that he was aware of

Machado’s criminal activity while they were associating – particularly since

the standard of proof in a probation violation hearing is a preponderance of

the evidence. See Cunningham v. State, 795 So. 2d 219, 220 (Fla. 4th DCA

2001) (“While the burden is on the state to prove by a preponderance of the

evidence that appellant's violation of the condition of probation was willful

and substantial, it is a question of fact that will not be overturned on appeal

unless there is no evidence to support the decision.”).

First, Orta and Machado were seen sitting together, chatting, in a

parking lot behind an apartment building. This fact lends itself to the

inference that Orta planned to meet Machado there. This is because people

do not typically just stroll into an apartment building’s parking lot and then sit

around there, particularly if the lot is behind the building. Typically, they are

only there for a brief period to park and then go inside the building because

that is a parking lot’s purpose. Because Orta was back there, chatting, this

lends itself to the inference that he was not there to park, but to meet the

other people there. Additionally, the fact that Orta was sitting supports a

reasonable inference that Orta’s presence was not momentary or fleeting.

4 Also, importantly, Orta yelling out that police officers were approaching

shows that Orta was concerned about those in earshot and wanted to protect

them from the police because he knew they were engaging in criminal

activity.

Plus, Orta was sitting “shoulder to shoulder” along with Machado who

was openly displaying a crack pipe – showing not only an awareness of what

Machado was doing, but also a level of comfort with someone holding drug

paraphernalia that one would not normally have with a stranger.

We further note that the facts before us are distinguishable from

Holmes v. State. In Holmes, the Fifth District held that evidence of a

defendant exiting a gas station with snacks in hand and stopping to speak

for several minutes to a group of alleged criminals outside the gas station

was insufficient to show a willful association with them. 988 So. 2d at 1254.

There, the evidence showed that the defendant could have gone to the gas

station for a multitude of reasons, in particular just to grab a snack. The brief

period that the defendant was there was also notably insufficient to show an

association and there was no evidence presented that the defendant knew

who the alleged criminals were prior to the interaction. Here, to the contrary,

the evidence shows that Orta intended to be where he was, that he was there

for more than a fleeting period of time, and that he knew Machado.

5 So, although the evidence of Orta’s willful association with Machado is

circumstantial, drawing all reasonable inferences from this evidence and

reviewing it under the preponderance of the evidence standard, it makes for

competent substantial evidence supporting the trial court’s finding of Orta’s

willful association with Machado. See Francois v. State, 923 So. 2d 1219,

1220 (Fla. 3d DCA 2006) (“Willfulness may be proven by circumstantial

evidence.”).

Affirmed.