NELSON FERNANDER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation because no evidence supported three technical violations and circumstantial evidence of defendant's presence near a burglary scene was insufficient to prove the burglary charge by greater weight of evidence.
Probation revocation is reversed where no evidence supports technical violations and circumstantial evidence of proximity to a crime scene is insufficient to prove the crime by greater weight of evidence.
[1] In a probation revocation proceeding, technical violations unsupported by any evidence at the hearing must be stricken from the court's findings.
[2] Circumstantial evidence of a defendant's proximity to a crime scene and attempted flight from police raises only suspicion and is insufficient to prove guilt by greater w…
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Join FLexlaw to unlock all legal intelligence“the defendant's presence half a block away from the building in early morning hours some fifteen to thirty minutes after the burglary and his attempted flight from a police officer who accosted him raise, at most, a mere suspicion that the defendant was involved in criminal activity and are insufficient to prove by the greater weight of the evidence that the defendant committed the burglary charged”
Court's analysis of the sufficiency of evidence regarding the burglary allegation
Defendant's probation was revoked based on four alleged violations: failure to submit monthly reports, failure to secure gainful employment, arrears i…
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PER CURIAM.
The trial court revoked the defendant’s probation finding that the defendant (a) failed to submit certain monthly reports, (b) failed to secure gainful employment, (c) was in arrears in cost of supervision payments, and (d) committed a burglary of an unoccupied dwelling. We reverse the order revoking probation upon a holding that (1) because no evidence whatsoever was adduced at the revocation hearing to support the three technical violations, the court’s findings in respect to these violations must be stricken, see Delgado v. State, 423 So. 2d 603 (Fla. 3d DCA 1982), and (2) while there was evidence presented tending to show that some unidentified and unde-scribed person had attempted to gain entry into the building in question, the defendant’s presence half a block away from the building in early morning hours some fifteen to thirty minutes after the burglary and his attempted flight from a police officer who accosted him raise, at most, a mere suspicion that the defendant was involved in criminal activity and are insufficient to prove by the greater weight of the evidence that the defendant committed the burglary charged. See Miller v. State, 420 So. 2d 631 (Fla. 2d DCA 1982), and cases cited. See also A.Y.G. v. State, 414 So. 2d 1158 (Fla. 3d DCA 1982); J.L.B. v. State, 396 So. 2d 761 (Fla. 3d DCA 1981); J.O. v. State, 384 So. 2d 966 (Fla. 3d DCA 1980); J.H. v. State, 370 So. 2d 1219 (Fla. 3d DCA 1979); Morgan v. State, 355 So. 2d 149 (Fla. 1st DCA 1978).
Reversed.
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State v. Townsend, 635 So. 2d 949 (Fla. 1994)…6, 98 L.Ed. 423 (1954); Ward (doctor’s testimony that child was having stomach aches, sleep disturbances, and acting dependent, was admissible to reflect basis for opinion that child suffered from post-traumatic stress syndrome); Fer-radas v. State, 434 So. 2d 24 (Fla. 3d DCA 1983). Even so, great care must be taken by a trial judge in determining what testimony of an expert is admissible because a jury often places great emphasis on the testimony of experts in this type of proceeding. Dirk Lorenzen, The Adm…
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Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986)…ultimate issue to be decided by the trier of fact.1 The Third District has held that section 90.703 permits an expert to testify in a prosecution for rape that the victim’s injuries were consistent with forced sexual intercourse. Ferradas v. State, 434 So. 2d 24 (Fla. 3d DCA 1983). In this case, the jury obviously had to decide the factual issue of whether the victim was actually subjected to a sexual assault, an issue similar to that involved in North and Ferradas. We also note that this view is not novel,…
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Trees v. K-Mart Corp., 467 So. 2d 401 (Fla. 4th DCA 1985)…e similarity between the two events and after considering Ms. Trees’ proffered testimony that she had not suffered any ill effects from the first arrest. The determination of relevancy is within the discretion of the trial court. Ferradas v. State, 434 So. 2d 24 (Fla. 3d DCA 1983); Nelson v. State, 395 So. 2d 176 (Fla. 1st DCA 1980). Where a trial court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, an appellate court will not overturn that…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- J. H. v. State, 370 So. 2d 1219 (Fla. 3d DCA 1979)
- J. L. B. v. State, 396 So. 2d 761 (Fla. 3d DCA 1981)
- A. Y. G. v. State, 414 So. 2d 1158 (Fla. 3d DCA 1982)
- J. O. and R. G. v. State, 384 So. 2d 966 (Fla. 3d DCA 1980)
- Morgan v. State, 355 So. 2d 149 (Fla. 1st DCA 1978)
- Miller v. State, 420 So. 2d 631 (Fla. 2d DCA 1982)
- Delgado v. State, 423 So. 2d 603 (Fla. 3d DCA 1982)