RONALD GRIFFIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ronald Griffin appeals the trial court's revocation of his probation and resulting sentences for grand theft and escape. The appellate court reverses, finding that the trial court lacked sufficient evidence to support the probation revocation because the evidence of out-of-state convictions was inadmissible hearsay and there was no showing of the defendant's ability to pay fines and restitution.
Yes. The trial court erred in revoking probation because the evidence of South Carolina convictions was inadmissible hearsay (documents not entered into evidence and response not a clear admission), and the court failed to establish the defendant's ability to pay before using nonpayment as grounds for revocation.
[1] A probation revocation hearing requires sufficient proof of violation, and hearsay testimony alone is insufficient to establish criminal convictions.
[2] A defendant's affirmative response to an inquiry about out-of-state convictions at a probation revocation hearing does not constitute a clear admission of those convictio…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Since the documents substantiating the South Carolina convictions were not entered into evidence and defendant did not clearly admit the convictions, the evidence of the criminal convictions came solely from the probation officer's testimony. This testimony was totally hearsay; therefore, the South Carolina convictions cannot stand as a basis for revocation.”
Establishes that hearsay evidence from an officer's testimony about out-of-state convictions, without documentary support or clear admission by the defendant, is insufficient for probation revocation.
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Join FLexlaw to unlock all legal intelligenceGriffin was placed on two concurrent five-year probation terms in 1980 for grand theft and escape, with orders to pay fines, costs, and make restituti…
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SCHEB, Acting Chief Judge.
Defendant Ronald Griffin appeals the trial court’s revocation of his probation and his judgments and sentences for grand theft and escape. We reverse.
In 1980 the court placed the defendant on two concurrent five-year probation terms for grand theft and escape. The court also ordered him to pay various fines and costs and make restitution. On June 26, 1984, defendant’s probation officer filed an affidavit charging him with violating probation in both cases. The officer alleged that defendant had been convicted of out-of-state offenses while on probation and had failed to pay the fines and costs and make restitution.
At the probation revocation hearing, the probation officer testified he never personally supervised defendant but had reviewed documents which indicated that defendant was convicted of fraudulent check charges in South Carolina. These documents were not entered into evidence. When the trial judge asked defendant if he admitted or denied the South Carolina convictions, defendant replied, “Yes, sir.” Without determining whether this affirmative response was an admission or denial of the convictions, the court revoked defendant’s probation. The allegations of nonpayment were not addressed at the hearing.
At the sentencing hearing, the trial judge adjudicated defendant guilty of grand theft and escape and sentenced him to five years’ imprisonment on each charge to be served concurrently. The sentencing guidelines scoresheet totaled 142 points, which provided a recommended range of two and one-half to three and one-half years’ imprisonment. In writing the judge explained that he had departed from the guidelines because, among other things, the defendant had violated the conditions of his probation. The judge wrote that he would have departed “whether or not less than all of the reasons [were] sufficient.”
On appeal, defendant raises two points. We need only address the first point which is dispositive of the case. Defendant contends that the trial court erred in revoking his probation without sufficient proof of violation of probation. He is correct.
Since the documents substantiating the South Carolina convictions were not entered into evidence and defendant did not clearly admit the convictions, the evidence of the criminal convictions came solely from the probation officer’s testimony. This testimony was totally hearsay; there fore, the South Carolina convictions cannot stand as, a basis for revocation. See Clemons v. State, 388 So. 2d 639 (Fla. 2d DCA 1980); Brown v. State, 338 So. 2d 573 (Fla. 2d DCA 1976).
In addition, the ability to pay costs and fines and make restitution must be shown before nonpayment may be used to justify revocation of probation. Raines v. State, 445 So. 2d 408 (Fla. 2d DCA 1984); Brown v. State, 429 So. 2d 821 (Fla. 2d DCA 1983). No evidence was introduced concerning the defendant’s ability to make these payments. Thus, his alleged failure to pay them could not be used to revoke his probation.
Consequently, the trial court erred in revoking defendant’s probation and listing both the substantial and technical violations of probation on the written order revoking probation.
Accordingly, we reverse the trial court’s revocation of defendant’s probation and his convictions and sentences for grand theft and escape. We remand for a new revocation hearing consistent with this opinion. See Clemons. If the trial court finds defendant’s probation should be revoked, it may sentence him within the next higher guidelines range above the recommended range without providing written reasons for departure. Fla.R.Crim.P. 3.701(d)(14). If the court decides to depart from the guidelines and sentence the defendant in excess of the next higher range, it must articulate in writing clear and convincing reasons for departure. Crews v. State, 477 So. 2d 1093 (Fla. 2d DCA 1985).
LEHAN and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Haynes v. State, 571 So. 2d 1380 (Fla. 2d DCA 1990)…ntrol or probation on the basis of nonpayment of costs, fines, or restitution, it is necessary to present sufficient evidence to support a finding that the probationer had the ability to make the financial payments required of him. Griffin v. State, 481 So. 2d 1312 (Fla. 2d DCA 1986). The record in this case does not support such a finding, but instead reflects that the appellant did not have the ability to make the required payments. The order requiring the appellant to complete a sex offender program did not…
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Berry v. State, 484 So. 2d 86 (Fla. 2d DCA 1986)…lure to notify his probation officer of his change of residence. Since no evidence was introduced showing defendant had the ability to pay supervision and court costs, that allegation must be stricken from the revocation order. See Griffin v. State, 481 So. 2d 1312 (Fla. 2d DCA 1986); Underwood; Raines v. State, 445 So. 2d 408 (Fla. 2d DCA 1984); Robinson. Finally, since the trial judge did not indicate which technical violations defendant had committed, we must remand for entry of an amended order where the j…
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McCOY v. State, 730 So. 2d 803 (Fla. 2d DCA 1999)…to pay various costs and to pay $30 per month toward the costs of supervision. The evidence, however, was insufficient to support this finding. The court did not find that Mr. McCoy had the financial ability to pay these costs. See Griffin v. State, 481 So. 2d 1312 (Fla. 2d DCA 1986). There is nothing in the record to establish that the trial court imposed a payment schedule for the costs, other than the costs of supervision. The order imposing community control simply provides that costs totaling $600 were t…
Authorities Cited
- Clemons v. State, 388 So. 2d 639 (Fla. 2d DCA 1980)
- Brown v. State, 338 So. 2d 573 (Fla. 2d DCA 1976)
- Brown v. State, 429 So. 2d 821 (Fla. 2d DCA 1983)
- Alphonso Williams v. State, 445 So. 2d 408 (Fla. 2d DCA 1984)
- Crews v. State, 477 So. 2d 1093 (Fla. 2d DCA 1985)
- Bowen v. Carnival Cruise Lines, Inc., 477 So. 2d 1093 (Fla. 3d DCA 1985)