KENDELL AMOS WILMORE v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: March 28, 2024
• Docket: 23-0400
• Status: Published

Opinion

FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 5D23-0400 LT Case No. 16-2016-CF-002779-AXXX _____________________________

KENDELL AMOS WILMORE,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Adrian G. Soud, Judge.

William Mallory Kent, of Kent & McFarland, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

March 28, 2024

PER CURIAM.

Kendell Amos Wilmore appeals the trial court’s order revoking his sex offender probation after finding him in violation of Special Condition 18 and Standard Condition 19. On appeal, Wilmore argues, inter alia, that the State failed to present competent, substantial evidence of either violation. We affirm the trial court’s finding that Appellant violated Special Condition 18, mandating electronic monitoring, without further discussion.

However, we agree that there is no competent, substantial evidence in our record to support the trial court’s finding that Wilmore violated Standard Condition 19, which prohibits contact with a minor. As such, the trial court’s finding that Wilmore violated Condition 19 is in error. See Stringfield v. State, 254 So. 3d 1127, 1127–28 (Fla. 5th DCA 2018) (“A lower court’s finding of a willful and substantial violation of probation must be supported by competent, substantial evidence.” (citation omitted)).

Based on our record, including the trial court’s focus on the violation of Standard Condition 19, we cannot determine whether the trial court would have revoked probation and imposed the same sentence based solely on the violation of Special Condition 18. We therefore reverse the order and remand for reconsideration. See Niemi v. State, 284 So. 3d 1143, 1145–46 (Fla. 5th DCA 2019).

We otherwise affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

WALLIS, LAMBERT, and EISNAUGLE, JJ., concur.

_____________________________

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