204 So. 3d 473
Fla. Dist. Ct. App.2016Background
- Palancar pleaded to a drug offense and was placed on probation with numbered conditions including: no new crimes, no excessive intoxicants, comply with officer instructions, and pay for drug testing.
- About a year later, he was arrested after restaurant staff reported he and a female companion were too intoxicated to be served and had fallen off a stool; a security officer smelled alcohol, observed loud/belligerent behavior, and said onlookers were present.
- The State alleged violations of (1) committing a new offense (disorderly intoxication), (2) using intoxicants to excess, (3) failing to follow officer instructions (by committing the new offense), and (4) failing to pay for drug testing.
- At the VOP hearing the officer testified about Palancar’s loud, belligerent conduct, that Palancar almost hit the officer with his truck earlier, and that there were onlookers; the officer also said he gave Palancar the “benefit of the doubt” and did not conduct a DUI investigation.
- The trial court found Palancar violated the no-new-crime and comply-with-instructions conditions, but did not find the drug-testing payment violation; the written revocation orders fluctuated in which conditions were listed as violated.
- The Fourth District Court reversed, holding the State failed to prove the charged new offense (disorderly intoxication), and thus probation must be reinstated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State proved disorderly intoxication (public disturbance or endangerment) | Palancar was intoxicated, loud/belligerent, drew onlookers, and earlier nearly hit the officer with his truck — satisfying statute | Conduct was loud/belligerent but did not cause a public disturbance; no proof the onlookers were drawn or affected; near-miss with truck not shown to be caused by intoxication | Reversed: State did not prove either element (public disturbance or endangerment); disorderly intoxication not established |
| Whether revocation based on failure to follow officer instructions (and related VOP findings) was proper | Instruction violation was shown because Palancar allegedly committed the new offense | Improper to revoke solely on arrest/new offense when new offense not proven; written orders inconsistent and condition re: intoxicants was not adjudicated | Reversed: VOP for failure to follow instructions cannot stand because it was premised on an unproven new offense; probation reinstated |
Key Cases Cited
- White v. State, 170 So. 3d 144 (Fla. 1st DCA 2015) (probation-violation findings must be supported by competent, substantial evidence)
- Royster v. State, 643 So. 2d 61 (Fla. 1st DCA 1994) (disorderly intoxication defined as either endangering safety or causing a public disturbance)
- Jernigan v. State, 566 So. 2d 39 (Fla. 1st DCA 1990) (profane/aggressive behavior alone insufficient for disorderly intoxication)
- Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983) (talking loudly and flapping arms not disorderly intoxication)
- Cross v. State, 374 So. 2d 519 (Fla.) (evidence that aggressive, profane behavior drew bystanders can support disorderly intoxication)
- C.P. v. State, 644 So. 2d 600 (Fla. 2d DCA 1994) (no evidence the public was disturbed where witnesses heard but no complaints or effects shown)
- Robinson v. State, 907 So. 2d 1284 (Fla. 2d DCA 2005) (improper to revoke probation solely on proof of arrest)