CLAUDE MCNEALY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Claude McNeal appeals the revocation of his probation and a three-and-one-half year prison sentence, raising four issues including the sufficiency of evidence for probation violations and the retroactive application of sentencing guidelines. The court affirmed the trial court's decision on all points.
The court affirmed all findings: (1) revocation was not based solely on hearsay because the probation officer's own testimony of multiple unsuccessful visits and McNeal's statements constituted non-hearsay evidence; (2) the second point lacked merit given evidence of employment and complete failure to pay; (3) the defendant's attorney requested the guidelines scoresheet and participated in discussions about it; and (4) the amended rule was not applied retroactively because the guideline election occurred after the effective date of the amendment.
[1] Hearsay evidence is admissible in a probation revocation hearing, but revocation cannot be based solely on hearsay.
[2] A probation violation for changing address without permission may be established by evidence of the probationer's absence from the residence and statements from others re…
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Join FLexlaw to unlock all legal intelligence“The well-established rule is that revocation cannot be based on hearsay alone.”
Establishes the controlling legal standard for probation revocation hearings regarding hearsay evidence.
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Join FLexlaw to unlock all legal intelligenceMcNeal was on probation with conditions including a requirement not to change addresses without permission and to pay costs of supervision. His probat…
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CAMPBELL, Judge.
Appellant appeals the trial court’s order revoking his probation and his sentence of three-and-one-half years in prison. We affirm.
He raises four points on appeal:
I.WHETHER THE TRIAL COURT ERRED IN FINDING THAT APPELLANT HAD VIOLATED PROBATION BY CHANGING ADDRESS WITHOUT PERMISSION, WHERE THE ONLY EVIDENCE PRESENTED WAS HEARSAY?
II.WHETHER THE TRIAL COURT ERRED IN FINDING THAT APPELLANT HAD VIOLATED PROBATION BY FAILING TO PAY THE COSTS OF SUPERVISION, WHEN THERE WAS NO SHOWING SUCH FAILURE TO PAY WAS WILLFUL OR THAT APPELLANT HAD THE ABILITY TO PAY?
III. WHETHER THE TRIAL COURT ERRED IN SENTENCING UNDER THE GUIDELINES WITHOUT OBTAINING AN AFFIRMATIVE REQUEST BY APPELLANT?
IV. WHETHER THE TRIAL COURT ERRED IN AUTOMATICALLY ENHANCING A GUIDELINE SENTENCE BY ONE CELL BECAUSE OF A VIOLATION OF PROBATION, WHERE SUCH ACTION CONSTITUTED A RETROACTIVE APPLICATION OF AMENDED RULE 3.701(d)(14)?
The attorney general, on behalf of appel-lee, conceded appellant’s first point by stating that the alleged violation of condition (3)of appellant’s probation “was based solely on hearsay evidence and cannot be sustained.” That concession is improper, ill-advised, and we refuse to accept it.
Condition (3) of appellant’s probation required appellant not to change addresses without permission. Appellant’s probation officer testified that she went to appellant’s residence on several occasions and could never find him. On her last visit there, appellant’s brother informed her that appellant no longer lived there and had no idea where he was. The brother’s statement is hearsay, but the probation officer’s testimony that she went to his place of residence several times and could never find him is not hearsay. Neither is her testimony that when she went to jail to interview him after he turned himself in and asked him why he left and where he had been, appellant informed her he had just been messing around Lakeland. When asked where he had been living, he “just said in Lakeland.” Hearsay is admissible in a revocation hearing. The well-established rule is that revocation cannot be based on hearsay alone. Clayton v. State, 422 So. 2d 83 (Fla. 2d DCA 1982); Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976); Brown v. State, 338 So. 2d 573 (Fla. 2d DCA 1976). In this case, revocation of probation for violation of condition (3) was not based solely on hearsay.
There is evidence that appellant was employed from time to time during his probation, yet he failed to ever pay any of the costs of supervision. Appellant’s second point is, therefore, not well taken.
Appellant’s attorney not only requested that a guidelines scoresheet be prepared, he objected to the first one and requested that a corrected scoresheet be prepared. This was done and there was considerable discussion between the trial judge and appellant’s attorney, with appellant present, as to the new guideline score-sheet and the presumptive sentence thereunder. We reject appellant’s third point on appeal.
Appellant’s fourth and final point concerns enhancing a guideline sentence automatically by one cell without stating a reason because of a violation of probation as provided in Florida Rule of Criminal Procedure 3.701(d)(14), as amended, effective July 1, 1984. Appellant argues that the court applied the amendment retroactively because appellant’s crime occurred prior to the effective date of the amend ment. Appellant relies on Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984).
Carter stands for the correct principle that a rule amendment should not be retroactive, but Carter is inapplicable here. Appellant’s crime was committed prior to October 1, 1983, the date on which guideline sentences became operative. The affidavit for violation of probation was filed August 31, 1984, and appellant was sentenced February 26, 1985, when he elected to be sentenced under the guidelines. Carter, therefore, does not apply to a crime committed prior to October 1, 1983, where the election to be sentenced pursuant to the guidelines occurs after the effective date of any of the applicable guideline rule amendments.
Affirmed.
OTT, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)…nce and he wasn’t there, and appellant’s statement that “he had gone to Alabama,” were sufficient to prove that appellant violated his probation by moving from his approved residence without the permission of his probation officer. McNealy v. State, 479 So. 2d 138 (Fla. 2d DCA 1985); see also Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985). Count IV charged that appellant violated his probation by committing the of [*1098] fense of DUI on December 19, 1986. At the hearing a certified copy of the judgment…
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Rowan v. State, 696 So. 2d 842 (Fla. 2d DCA 1997)…A 1996), approved, 686 So. 2d 1356 (Fla.1997), the appellate court upheld a revocation of [*844] probation based on a similar condition where the probationer admitted to the probation officer that he was living “in the streets.” In McNealy v. State, 479 So. 2d 138 (Fla. 2d DCA 1985), and McPherson v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988), the defendants admitted they were living elsewhere, and furthermore, the probation officers visited the residences a few times and found the probationers absent. Finall…
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Colina v. State, 629 So. 2d 274 (Fla. 2d DCA 1993)…s hearsay as was testimony of a police officer and appellant’s probation officer. Although hearsay evidence is admissible in a probation revocation hearing, proving a violation of probation solely by hearsay evidence is improper. McNealy v. State, 479 So. 2d 138 (Fla. 2d DCA 1985); Lira v. State, 579 So. 2d 781 (Fla. 3d DCA 1991). Because the evidence relied upon to prove appellant committed a battery while on probation was hearsay, the trial court’s finding that appellant violated his probation is improper…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976)
- Brown v. State, 338 So. 2d 573 (Fla. 2d DCA 1976)
- Clayton v. State, 422 So. 2d 83 (Fla. 2d DCA 1982)