THOMAS BRAXTON FERRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ferris appeals the revocation of his probation after being found guilty of perjury by contradictory statements. The court reversed, holding that statements made in a plea petition and later in an administrative hearing were not mutually exclusive because they related to different events and thus could not constitute perjury.
The court held that Ferris did not commit perjury because the statements were not mutually exclusive; they related to different events—the plea petition addressed circumstances surrounding the plea itself, while the administrative hearing testimony addressed police interrogation and alleged promises concerning the initial charges. Therefore, the probation revocation must be reversed.
[1] Perjury by contradictory statements requires proof that the statements made were mutually exclusive.
[2] Statements made in a sworn petition to enter a plea relate to the circumstances surrounding the decision to plead and the plea itself.
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Join FLexlaw to unlock all legal intelligence“To successfully prosecute a charge of perjury by contradictory statements, the state must prove that the statements made were mutually exclusive.”
Establishes the legal standard for perjury by contradictory statements under Florida law
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Join FLexlaw to unlock all legal intelligenceFerris entered a nolo contendere plea to sexual battery pursuant to a plea agreement. In his sworn plea petition, he declared that no government offic…
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SHARP, Judge.
This is an appeal from an order revoking, and subsequently modifying, Ferris’ probation 1 after the lower court found him guilty of perjury by contradictory statements.2 Ferris contends the evidence fails to demonstrate that the statements were inconsistent and contradictory. We agree and reverse.
Ferris pled nolo contendere to sexual battery as a result of a plea agreement. A condition of his probation was that he live and remain at liberty without violating any law. In his sworn petition to enter a plea, Ferris signed a form which stated:
I declare that no officer or agent of any branch of government (federal, state or local) has made any promise or suggestion of any kind to me or, within my knowledge, to anyone else, that I will receive a lighter sentence or probation or any other form of leniency if I plead (guilty) (nolo contendere) except: the exceptions set out in the negotiated plea agreement which is filed herewith (Emphasis added).
I declare that no officer of any branch of government (federal, state, or local) has subjected me to any force, duress, threats, intimidation or pressure to compel or induce me to enter this plea. (Emphasis added).
Subsequently, an administrative hearing was held to determine whether Ferris’ teaching certificate should be revoked. At the hearing Ferris testified:
On several occasions during the interrogation McConnel stated that I would not lose my teaching job if I “came clean” and admitted the allegations. I was then employed as a school teacher at Spring Hill Elementary School. He also stated several times during the interrogation that the criminal prosecution would go “easier on me” and that the punishment would be less harsh if I admitted the allegations of misconduct. McConnel also emphasizing that I could avoid all the negative “publicity” surrounding the allegations by admitting the alleged involvement. He stated that the police department would keep everything low key if I would “come clean” and admit the allegations.
To successfully prosecute a charge of perjury by contradictory statements, the state must prove that the statements made were mutually exclusive. Brown v. State, 334 So. 2d 597 (Fla.1976). The statements Ferris made in the petition relate to the circumstances surrounding his decision to enter the plea and concern the plea itself. The statements made in the administrative hearing relate to his initial interrogation by the police and concern the benefits to Ferris should he admit to the charges against him.
A nolo plea does not admit guilt or the allegations of the charges, but rather communicates that the defendant chooses not to defend against those charges. Vinson v. State, 345 So. 2d 711 (Fla.1977). It is the equivalent of a guilty plea only insofar as it gives the court the power to punish. Peel v. State, 150 So. 2d 281 (Fla. 2d DCA 1963), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965). While we can envision circumstances where a defendant could plead nolo contendere and make sworn statements which are, on their face, mutually exclusive (and thus be guilty of perjury under this section), such is not the case here. The statements made here were not mutually exclusive because they relate to different events.
The burden of proof in a probation revocation proceeding is the greater weight of the evidence and not beyond a reasonable doubt. Rita v. State, 470 So. 2d 80 (Fla. 1st DCA), review denied, 480 So. 2d 1296 (Fla.1985); Miller v. State, 420 So. 2d 631 (Fla. 2d DCA 1982). Nevertheless, on the facts of this case, we are of the opinion that this burden has not been met.
REVERSED AND REMANDED.
DAUKSCH and ORFINGER, JJ., concur. . Ferris was initially placed on probation for a three-year period and adjudication was withheld. After the terms of the initial probation were revoked, appellant was adjudicated guilty, and an additional seven years was tacked onto his probationary term.
. § 837.021, Fla.Stat. (1983).
(1) Whoever, in one or more official proceedings, willfully makes two or more material statements under oath when in fact two or more of the statements contradict each other is guilty of a felony of the third degree....
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Bernhine W. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988)…of the cocaine and of Young’s representation during the sale that the substance was indeed cocaine. The burden of proof in a probation revocation proceeding is the greater weight of the evidence, not proof beyond a reasonable doubt. Ferris v. State, 489 So. 2d 174 (Fla. 5th DCA 1986). Young next contends that the trial court erred in departing from the sentencing guidelines based on a finding that he violated his probation by twice more selling cocaine. The Florida Supreme Court addressed the question of whe…
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Moser v. State, 523 So. 2d 783 (Fla. 5th DCA 1988)…additional seven years. In order to prove a violation of probation, the state’s burden of proof is the greater weight of the evidence rather than proof beyond a reasonable doubt. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988); Ferris v. State, 489 So. 2d 174 (Fla. 5th DCA 1986). A mere suspicion that the probationer was engaged in criminal activity will not suffice. Miller v. State, 420 So. 2d 631 (Fla. 2nd DCA 1982). While there was testimony that the appellant had, on prior occasions, committed acts…
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Hernandez v. State, 723 So. 2d 886 (Fla. 4th DCA 1998)…llate court reviews trial court’s probation revocation decision for an abuse of discretion). The state’s burden of proof at a probation revocation hearing is the greater weight of the evidence and not beyond a reasonable doubt. See Ferris v. State, 489 So. 2d 174, 176 (Fla. 5th DCA 1986). Appellant cites Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978), in which this court reversed a probation revocation order due to the state’s failure to present any evidence of a willful and substantial violation. That…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Peel v. State, 150 So. 2d 281 (Fla. 2d DCA 1963)
- Hutchins v. State, 345 So. 2d 711 (Fla. 1977)
- Miller v. State, 420 So. 2d 631 (Fla. 2d DCA 1982)
- Rita v. State, 470 So. 2d 80 (Fla. 1st DCA 1985)
- Fair v. Fair, 380 U.S. 986 (U.S. 1965)
- Morphew v. Indiana, 380 U.S. 986 (U.S. 1965)
- Brown v. State, 334 So. 2d 597 (Fla. 1976)