GEORGE R. WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Walker appealed the revocation of his probation, which was based primarily on hearsay testimony from his brother's confession to a detective. The court reversed, holding that hearsay evidence alone cannot support probation revocation and that the brother's statement was not admissible under the statement-against-interest exception because it implicated both the declarant and the accused.
Hearsay evidence alone cannot support probation revocation. A statement made by a codefendant or other person that implicates both the declarant and the accused is not admissible under the statement-against-interest exception. The circumstantial evidence remaining after excluding the inadmissible hearsay was insufficient to sustain the revocation.
[1] A statement or confession offered against an accused in a criminal action, made by a codefendant or other person implicating both himself and the accused, is not admissib…
[2] Hearsay evidence alone cannot support an order revoking probation.
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Join FLexlaw to unlock all legal intelligence“Hearsay evidence alone cannot support an order revoking probation.”
Establishes the fundamental legal standard that probation revocation cannot rest solely on inadmissible hearsay evidence
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Join FLexlaw to unlock all legal intelligenceWalker was on probation with a condition requiring him to live at liberty without violating any law. An affidavit of violation was filed alleging he c…
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COBB, Judge.
The appellant, George Renick Walker, has appealed from the revocation of his probation, the result of a hearing held on February 11, 1982. The hearing stemmed from an affidavit of violation of probation filed on August 19,1981, by Walker’s probation officer, alleging that he had violated Condition 5 of his probation by committing burglary of a service station. Condition 5 reads:
You will live and remain at liberty without violating any law. A conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation.
At the probation violation hearing the principal testimony against Walker came from Detective Robert Burns, who investigated the burglary. On August 11,1981, he questioned Gary Ray Walker, the appellant’s brother, regarding the incident. The defense objected to the state eliciting testimony from Burns that Gary Walker confessed and the contents of the confession on the grounds that it was hearsay and involved an involuntary confession. The trial court overruled the objection. Burns then testified that Gary had told him that the Walker brothers and a friend were returning home from a party when they decided to break into the service station. Using a crowbar or tire iron, they pried the hinges off the walk-in cooler attached to the station and removed two beer kegs therefrom, after which they left the area.
The other testimony against the appellant adduced at the hearing was as follows: he was seen walking in front of the station several hours after the break-in had been discovered, and his purported destination was confused and indefinite. The court found that the probation violation was proved by substantial and competent evi- deuce, and revoked Walker’s probation, remanding him to the Department of Corree-tions to serve the balance of his sentence. This appeal from the order of revocation ensued.
Hearsay evidence alone cannot support an order revoking probation. Johnson v. State, 378 So. 2d 108 (Fla. 5th DCA 1980). The state argues that Burns’s testimony as to the confession of Gary Walker, implicating the appellant, is a hearsay exception under section 90.804(2)(c), Florida Statutes (1982), on the basis that it constitutes a statement against interest, and therefore it alone could justify the order of revocation. This argument, however, lacks merit in light of the last sentence of that provision, which reads:
A statement or confession which is offered against the accused in a criminal action, and which is made by a codefend-ant or other person implicating both himself and the accused, is not within this exception. [Emphasis added.]
The remaining evidence against Walker is circumstantial. The instant case is similar to Combs v. State, 351 So. 2d 1103 (Fla. 4th DCA 1977). Combs involved an appeal from an order revoking probation upon a finding that appellant had participated in a burglary. Combs argued that the evidence of his participation in the burglary was hearsay testimony by a police officer that another participant in the burglary had implicated Combs. The state argued that other evidence was offered at the hearing concerning the burglary, but the Fourth District emphasized that none of the other evidence in any way connected Combs to the burglary. The court reversed the order revoking appellant’s probation. We find Combs to be directly on point with the instant case and, accordingly, we reverse the order revoking the appellant’s probation.
REVERSED and REMANDED.
DAUKSCH and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Maugeri v. State, 460 So. 2d 975 (Fla. 3d DCA 1984)…co-perpetrator. Fairly read in this light, the sentence goes no further than to exclude statements which implicate both the declarant and the defendant in the same crime which is the subject of the pending action, as was the case in Walker v. State, 426 So. 2d 1180 (Fla. 5th DCA 1983).8 The provision patently does not apply to this case in which the admission of one crime provides the motive for the commission of another. See also Law Revision Council Note — 1976, 6 C Fla.Stat.Ann. § 90.804(2)(c) at 362 (1979)…
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Davis v. State, 562 So. 2d 431 (Fla. 1st DCA 1990)…may be admissible pursuant to various exceptions to the hearsay rule. See e.g., § 90.803(6), Fla.Stat. (1987). In such a case, evidence properly admitted pursuant to such an exception, could sustain an order revoking probation. See Walker v. State, 426 So. 2d 1180 (Fla. 5th DCA 1983). However, as the record in this case demonstrates, no effort was made to authenticate the lab report as a business record; nor was any other exception to the general rule excluding hearsay evidence established. See also, City of…
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Williams v. State, 553 So. 2d 365 (Fla. 5th DCA 1989)…may be admissible pursuant to various exceptions to the hearsay rule. See, e.g., § 90.803(6), Fla.Stat. (1987). In such a case, evidence properly admitted pursuant to such an exception, could sustain an order revoking probation. See Walker v. State, 426 So. 2d 1180 (Fla. 5th DCA 1983).2 However, as the record in this case demonstrates, no effort was made to authenticate the lab report as a business record; nor was any other exception to the general rule excluding hearsay evidence established. Accordingly, we…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Combs v. State, 351 So. 2d 1103 (Fla. 4th DCA 1977)
- Johnson v. State, 378 So. 2d 108 (Fla. 5th DCA 1980)