Jones v. State
117 So. 3d 818
| Fla. Dist. Ct. App. | 2013Background
- Probation orders prohibited any violation of law; violation affidavit alleged loitering or prowling (k.4).
- Violation hearing focused on k.4. after State abandoned other allegations.
- Two witnesses testified: a husband and wife observed at ~12:30–12:40 a.m. a man knocking and hiding near the door; wife identified the defendant.
- Video footage showed two individuals knocking; officer saw two men walking away and then changing direction; they appeared nervous.
- Officer conducted stop; defendant and co-defendant claimed not residents; officer observed (mistaken) firearm in co-defendant’s waistband; Glock later identified as BB gun.
- Court found incipient criminal behavior and that the defendant willfully violated probation by preponderance; defendant pled to loitering or prowling and appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did State prove loitering or prowling by preponderance? | State argues preponderance suffices for probation violation. | Freedman/defendant claims evidence insufficient to prove loitering or prowling. | No; insufficient evidence to prove loitering or prowling by preponderance. |
| May witnesses’ reports be used to support loitering/prowling where officer observations were limited? | State relied on witnesses’ reports of knocking and behavior to establish risk. | Only officer observations may support probable cause for loitering; witnesses’ reports cannot substitute. | Witness reports cannot substitute for officer observations; insufficient to prove element. |
| Was the standard of proof and review appropriate for probation revocation based on a new offense? | Preponderance standard applied; de novo review appropriate. | Process and evidence inadequate for revocation. | Reversed; no substantial, competent evidence to support revocation. |
Key Cases Cited
- Mills v. State, 58 So.3d 936 (Fla. 2d DCA 2011) (loitering/prowling statute requires careful application; not a catchall)
- V.E. v. State, 539 So.2d 1170 (Fla. 3d DCA 1989) (first element requires threat of immediate future criminal activity)
- Hollingsworth v. State, 991 So.2d 990 (Fla. 4th DCA 2008) (presumption of alarm when defendant flees or conceals)
- B.J. v. State, 951 So.2d 100 (Fla. 4th DCA 2007) (alarm element; defendant’s explanation must be considered)
- Freeman v. State, 617 So.2d 432 (Fla. 4th DCA 1993) (probable cause requires officer observations; non-observed reports insufficient)
- Springfield v. State, 481 So.2d 975 (Fla. 4th DCA 1986) (witness reports cannot substitute for officer observations)
- A.D. v. State, 817 So.2d 1027 (Fla. 3d DCA 2002) (interpretation of loitering element; emphasis on immediate concern)
- D.A. v. State, 471 So.2d 147 (Fla. 3d DCA 1985) (loitering analysis; guidance on first element and second element)