Palancar v. State

204 So.3d 473

Manuel F. PALANCAR, Appellant,

v.STATE of Florida, Appellee.

No. 4D14–3935.

District Court of Appeal of Florida, Fourth District.

July 6, 2016.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, C.J.

Manuel Palancar appeals the orders revoking probation and imposing a prison sentence. We agree that the trial court erred in finding that the state proved the new offense of disorderly intoxication, and we reverse and remand for the court to reinstate probation.

Pursuant to a negotiated plea, Palancar was placed on probation for a drug offense. Among other terms, the probation order provided, by numerically designated paragraphs, the following:

(5) You will live without violating any law....

....

(7) You will not use intoxicants to excess....

....

(9) You will ... comply with all instructions your officer may give you.

In special condition 3, the order placing Palancar on probation also provided that Palancar would pay for drug testing.

About one year after Palancar was placed on probation, the state alleged that he violated special condition 3 by failing to pay for drug testing; violated condition 5 of his probation by committing the offense of disorderly intoxication; violated condition 7 of his probation by using intoxicants to excess, as evidenced by his arrest for disorderly intoxication; and violated condition 9 of his probation by failing to follow instructions (not to violate the law), as evidenced by his arrest for disorderly intoxication.

At the final VOP hearing, two witnesses testified for the state. The probation officer confirmed that he had explained the terms of probation to Palancar. Officer Cadselie Serralta testified as follows. He was off duty but working as a security officer at a restaurant. He was sitting on the edge of the street bordering the parking lot when a white truck, driven by Palancar, pulled into the parking lot and almost hit him. Palancar and a woman passenger exited the truck and entered the restaurant.

About ten minutes later, Palancar left the restaurant. A restaurant employee approached the officer and told him "they couldn't serve him and his girlfriend ... because they were too intoxicated." The manager and employees wanted the officer to intervene because Palancar was getting ready to drive, and the employees had observed Palancar and his girlfriend fall off of a stool in the restaurant.

Officer Serralta approached the truck and observed Palancar arguing with the woman. At that time, there were about three or four people "hanging out just south" of where Palancar was standing, "and then behind us towards the entrance of the restaurant and west of ... where his vehicle was parked." Serralta was not aware of how many people were in the restaurant other than Palancar, the woman, and the restaurant employees.

Officer Serralta could smell alcohol on Palancar's breath. He told Palancar that he could not drive. Palancar was initially compliant but then he became "a little loud" and was "causing a commotion," leading Serralta to direct him to "step aside, step back," and "calm down, be quiet." Palancar "was yelling and did cause a disturbance where we had onlookers." Officer Serralta acknowledged that he was familiar with Palancar from previous encounters and that Palancar speaks loudly. When he told Palancar he would have to take a taxi, Palancar became "belligerent" and threatened "to sue us and that type of stuff." Officer Serralta arrested Palancar for disorderly intoxication.

The trial court found that Palancar violated conditions 5 (commit no new criminal offenses) and 9 (comply with the probation officer's instructions to not commit a new crime), but that the state did not prove a violation of condition 3 (pay for drug testing). The court simply failed to address condition 7 (refrain from using intoxicants to excess).

The court sentenced Palancar to a prison term and in response to a motion to correct sentencing error, the court entered a written revocation order, which revoked Palancar's probation and found him in violation of conditions 5, 7, and 9, but not 3. In response to still another motion to correct sentencing error, the court "corrected" the revocation order to reflect that Palancar violated only conditions 5 and 9.

On appeal, Palancar argues that the state did not prove disorderly intoxication where there was no evidence that he caused a public disturbance or endangered the public safety, and thus the trial court erred in finding he violated conditions 5 and 9.

"While a trial court has broad discretion to determine whether a person has willfully and substantially violated his probation, findings supporting that determination must be supported by competent, substantial evidence." White v. State, 170 So.3d 144, 145 (Fla. 1st DCA 2015).

The state alleged Palancar violated his probation by, among other things, committing the new offense of disorderly intoxication and failing to follow his probation officer's instructions by committing the new offense.

Section 856.011, Florida Statutes, provides in pertinent part: "No person in the state shall be intoxicated and endanger the safety of another person or property, and no person in the state shall be intoxicated or drink any alcoholic beverage in a public place or in or upon any public conveyance and cause a public disturbance." § 856.011(1), Fla. Stat. (2014).

"[U]nder the plain language of the statute, ‘disorderly intoxication’ is defined and proscribed in two distinct ways: (1) where the person is intoxicated and endangers the safety of another person or property; and (2) where the person is intoxicated or drinks alcohol in a public place or on a public conveyance and causes a public disturbance." Royster v. State, 643 So.2d 61, 64 (Fla. 1st DCA 1994).

Palancar does not dispute there was sufficient evidence of his intoxication. At issue in the instant case is whether the state proved that Palancar caused a public disturbance or endangered...