TOMMY LEE MCCRARY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tommy Lee McCrary appealed the revocation of his probation, arguing that the trial court erred by revoking it without evidence of his financial ability to pay supervision costs and based on hearsay testimony regarding non-compliance with his probation officer's instructions. The appellate court agreed and reversed, finding the state's evidence insufficient on both violation counts.
Probation cannot be revoked solely for violation of financial payment conditions without evidence that the probationer is able to make payment. Additionally, a probationer's violation cannot be established based solely on hearsay evidence; other competent evidence of the defendant's actual misconduct is required.
[1] Probation cannot be revoked solely for violation of financial conditions without evidence that the probationer is able to make payment.
[2] A probationer's flight does not excuse the state's failure to present evidence of the probationer's financial ability to pay supervision costs for periods prior to the fl…
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Join FLexlaw to unlock all legal intelligence“probation cannot be revoked solely for violation of conditions requiring payment without evidence that the probationer is able to make payment.”
Establishes the legal standard that financial conditions require proof of ability to pay before revocation is proper.
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Join FLexlaw to unlock all legal intelligenceMcCrary was charged with probation violations for failing to pay $10 monthly toward supervision costs (accruing $70 in arrears over seven months) and …
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BOARDMAN, EDWARD F., (Ret.) Judge.
Appellant Tommy Lee McCrary challenges the trial court’s order revoking his probation after finding that he had violated conditions two and eight of his probation by failing to pay the monthly cost of his supervision and failing to comply with his probation officer’s instructions. McCrary contends that the trial court erred in rendering its order of revocation when the state presented no evidence concerning his ability to comply with a financial condition of probation and when only hearsay evidence established his noncompliance with his probation officer’s instructions. We agree with both contentions and reverse.
The affidavit of violation filed against McCrary charged that he failed to contribute $10 each month toward the cost of his supervision for a seven-month period and, thus, was $70 in arrears on this obligation as of January 5, 1978. The affidavit further alleged that appellant failed to comply with his probation officer’s instruction to report to the offender rehabilitation office in North Fort Myers by January 6, 1978, instead remaining at large with his whereabouts unknown until apprehended on June 6, 1984.
The state concedes that it presented no evidence concerning appellant’s financial ability to pay his costs of supervision, notwithstanding this court’s holding in Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979). In Coxon, this court determined that “probation cannot be revoked solely for violation of conditions requiring payment without evidence that the probationer is able to make payment.” 365 So. 2d at 1068. Accord Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978). The state attempts to excuse its failure to present the requisite proof, however, by arguing that appellant’s flight prevented it from establishing his economic status during his months of hiding. Thus, according to the state, it should not be penalized for its inability to prove facts shielded from its knowledge as a result of appellant’s wrongful conduct. We find this argument particularly unpersuasive in light of the charging instrument’s allegation and the state’s evidence establishing that McCrary failed to pay the cost of his supervision for seven months prior to the date of his alleged flight. Thus, it appears clear that appellant’s conduct did not hamper or defeat the state’s ability to demonstrate his financial status during the period in question. Consequently, we deem the state’s evidence insufficient to establish appellant’s violation of condition two.
Similarly, we find the state’s evidence inadequate to demonstrate appellant’s alleged noncompliance with his probation officer’s instructions, in contravention of condition eight. On this point, McCrary’s probation officer, J.D. Davis, testified that he instructed appellant to report to the offender rehabilitation center in Fort Myers by January 6, 1978. Personnel in the Fort Myers office later informed Davis that appellant had failed to report. On cross-examination, Davis conceded, however, that he had no personal knowledge concerning McCrary’s noncompliance with his instruction. Furthermore, the state presented no additional evidence establishing appellant’s alleged misconduct.
While hearsay evidence is admissible in a probation revocation proceeding, a defendant’s probation cannot be revoked solely on the basis of such evidence. Clemons v. State, 388 So. 2d 639 (Fla. 2d DCA 1980); Reeves v. State, 366 So. 2d 1229 (Fla. 2d DCA 1979); Combs v. State, 351 So. 2d 1103 (Fla. 4th DCA 1977). Conversely, as the Fourth District observed in Combs, “The rule requiring more than hearsay to establish a violation of probation requires other evidence of the defendant’s misconduct, not just other evidence.” 351 So. 2d at 1103. In the instant case, however, only the hearsay testimony of J.D. Davis connected appellant with the charged violation.
Having concluded that the state failed to present sufficient, competent evidence establishing appellant’s alleged probation violations, we reverse the order of revocation and the subsequent adjudication and sentence rendered on the underlying offenses and remand with instructions to reinstate appellant’s probation.
Reversed and Remanded.
DANAHY, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Adams v. State, 521 So. 2d 337 (Fla. 4th DCA 1988)…on to the hearsay rule. However in this case the state failed to introduce the records into evidence. While hearsay is admissible in revocation proceed [*338] ings, probation may not be revoked solely on the basis of such evidence. McCrary v. State, 464 So. 2d 670 (Fla. 2d DCA 1985); Reeves v. State, 366 So. 2d 1229 (Fla. 2d DCA 1979). Despite the presence of the probation records in the courtroom and despite the probation officer relying upon them as the source of her testimony, the state never introduced t…
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Garcia v. State, 701 So. 2d 607 (Fla. 2d DCA 1997)…2d 499 (Fla. 2d DCA 1988). Although hearsay is admissible in evidence at a probation revocation hearing, a revocation of probation may not be based solely upon hearsay evidence. See Kipp v. State, 657 So. 2d 931 (Fla. 2d DCA 1995); McCrary v. State, 464 So. 2d 670 (Fla. 2d DCA 1985). In the instant case, the State failed to present sufficient evidence that appellant changed his residence without the consent of his probation officer in violation of condition number three. The evidence supporting a violation o…
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Dietz v. State, 534 So. 2d 808 (Fla. 2d DCA 1988)…the hearsay rule as a business record. See § 90.803(6), Fla.Stat. (1985). Without that foundation, this evidence was inadmissible as hearsay, and Dietz’s community control cannot be revoked solely on the basis of hearsay evidence. McCrary v. State, 464 So. 2d 670 (Fla. 2d DCA 1985). We find the state has met its burden in proving a violation of condition eleven. In a hearing upon a violation of community control, the state must prove the violation by the greater weight of the evidence only. Swift v. State,…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Frank v. State, 360 So. 2d 1158 (Fla. 3d DCA 1978)
- Combs v. State, 351 So. 2d 1103 (Fla. 4th DCA 1977)
- Clemons v. State, 388 So. 2d 639 (Fla. 2d DCA 1980)
- Reeves v. State, 366 So. 2d 1229 (Fla. 2d DCA 1979)