JOHN JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Johnson's probation was revoked by the trial court based on two alleged violations. The appellate court affirmed the finding that Johnson violated the condition prohibiting drug use but reversed the finding that he violated the condition requiring him to remain in his county of residence, holding that the violation lacked the necessary element of willfulness given his adjudication of incompetency.
The court affirmed that Johnson violated the drug condition based on his admission to using heroin, as admissions by defendants are not hearsay and may support a probation violation finding. However, the court reversed the finding regarding the residence violation because the evidence did not establish the requisite willfulness given the undisputed fact that Johnson was adjudicated incompetent at the time he fled the hospital.
[1] A defendant's admission against interest is not hearsay and may be considered as evidence in a probation revocation hearing.
[2] A violation of a condition of probation requiring consent to change residence or leave the county must be willful.
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Join FLexlaw to unlock all legal intelligence“No evidence was presented to the trial court to rebut the presumption that this incompetency in fact continued until the restoration proceeding in June, 1977. This was insufficient to establish willfulness.”
Establishes that the trial court erred in finding Johnson violated the residence condition because willfulness could not be proven when he was adjudicated incompetent.
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Join FLexlaw to unlock all legal intelligenceJohnson was placed on seven-year probation in March 1971 after pleading guilty to attempted robbery. He was declared incompetent and committed to a st…
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COBB, Judge.
The defendant John Johnson, was placed on seven years probation in March, 1971 after pleading guilty to attempted robbery. In January, 1974 he was declared incompetent and committed to a state hospital. He escaped and went to Pennsylvania for some three years. He was returned to Florida in May, 1977, and declared competent in June.
At a probation revocation hearing held on January 30, 1978, the trial court revoked defendant’s probation for violation of two conditions: condition (a) required that defendant not change residence or leave the county of residence without the consent of the probation supervisor; condition (c) proscribed use of narcotic drugs by the defendant.
In regard to condition (a), we find the evidence adduced at the hearing insufficient to establish the requisite element of willfulness in view of the undisputed fact that defendant fled from the hospital while under an adjudication of incompetency. No evidence was presented to the trial court to rebut the presumption that this incompetency in fact continued until the restoration proceeding in June, 1977. This was insufficient to establish willfulness. See Gardner v. State, 365 So. 2d 1053 (Fla. 4th DCA 1978).
The determination by the trial court that defendant violated condition (c) is another matter. This was based on the testimony of the probation supervisor that in a conversation with defendant in December, 1973, at which time the defendant presumably was mentally competent (and no evidence was offered at the hearing to indicate otherwise), the latter admitted to him to the use of heroin subsequent to the imposition of probation in March, 1971. The defendant denied making this admission against interest, but the trial judge was at liberty to believe that he did. The defendant contends an admission against interest is hearsay which, standing alone, cannot suffice as proof of violation of a condition of probation, relying on Jones v. State, 348 So. 2d 942 (Fla. 2d DCA 1977) and White v. State, 301 So. 2d 464 (Fla. 1st DCA 1974). Contrary to this contention, a defendant’s admission, as opposed to statements by third parties, is not hearsay. Robinson v. Pepper, 94 Fla. 1184, 116 So. 4 (1928) and Jones, supra.
Consequently, we affirm the finding of the trial court that defendant violated condition (c) and reverse its finding that condition (a) was violated, and this cause is remanded to the trial court for resentencing. See Cohen v. State, 365 So. 2d 1052 (Fla. 4th DCA 1978).
AFFIRMED IN PART AND REVERSED IN PART. REVERSED WITH DIRECTIONS.
DAUKSCH, C. J., and SHARP, J., concur.
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Citator
Cited By (11 total)
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Williams v. State, 553 So. 2d 365 (Fla. 5th DCA 1989)…probation. Clearly, the lab test report, standing alone, is hearsay. Although it may be admitted at a revocation hearing, it alone cannot be the basis to find a violation. Purvis v. State, 397 So. 2d 746, 747 (Fla. 5th DCA 1981); Johnson v. State, 378 So. 2d 108 (Fla. 5th DCA 1980). Clark’s chain of custody testimony as to the sample is not sufficient to remove the lab test result (performed by another person in another city) from the category of hearsay, normally inadmissible in evidence at trial. This ca…
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Jillette Jones v. State, 423 So. 2d 513 (Fla. 5th DCA 1982)…to the effective date of the Evidence Code in Florida, this court sustained the revocation of a defendant’s probation when the evidence establishing the probation violation was the defendant’s own admission made to his supervisor. Johnson v. State, 378 So. 2d 108 (Fla. 5th DCA 1980). In that case we said the defendant’s admission was not hearsay, citing Robinson v. Pepper, 94 Fla. 1184, 116 So. 4 (1928). In Webb v. State, 392 So. 2d 35 (Fla. 5th DCA 1980), this court also sustained the revocation of a defen…
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James v. Suarez, 391 So. 2d 343 (Fla. 5th DCA 1980)…sted of hearsay. See Reeves v. State, 366 So. 2d 1229 (Fla. 2d DCA 1979). We find, however, that there was sufficient evidence to support the violations. Appellant’s own admission that the lien had not been paid was sufficient. See Johnson v. State, 378 So. 2d 108 (Fla. 5th DCA 1980). We affirm the order of the trial court as to appellant’s violation of condition nine of the probation order but remand for correction of the order to delete the finding of a violation of condition four. REMANDED in part and AF…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- White v. State, 301 So. 2d 464 (Fla. 1st DCA 1974)
- Magnolia Green v. State, 348 So. 2d 942 (Fla. 2d DCA 1977)
- Gardner v. State, 365 So. 2d 1053 (Fla. 4th DCA 1978)
- Robinson v. Pepper, 94 Fla. 1184 (Fla. 1928)
- Cohen v. State, 365 So. 2d 1052 (Fla. 4th DCA 1978)