WILLIAM DIETZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a conviction for attempted sexual battery but remanded for correction of the sentencing procedure. The court found insufficient evidence to prove a violation of one community control condition due to hearsay, but sufficient evidence for another condition. The court emphasized that the trial judge must specify which conditions were violated.
1. The state failed to meet its burden of proof for the violation of the condition requiring daily phone calls due to inadmissible hearsay evidence. However, the state met its burden of proof for the violation of the condition restricting movement from the residence. 2. Yes, the trial court must specify the conditions of community control that have been violated when revoking community control.
[1] A community control officer's telephone log is inadmissible hearsay without a proper foundation establishing it as a business record exception.
[2] A defendant's community control cannot be revoked solely on the basis of inadmissible hearsay evidence.
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Join FLexlaw to unlock all legal intelligence“We find that the state failed to meet its burden of proof regarding a violation of condition eight.”
Establishes the court's finding on one of the alleged violations.
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Join FLexlaw to unlock all legal intelligenceWilliam Dietz, aged 91, pleaded nolo contendere to attempted sexual battery and was placed on community control. His community control officer filed a…
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PARKER, Judge.
Dietz appeals a judgment and sentence for the offense of attempted sexual battery “on a child eleven years of age or younger. We affirm the judgment but remand for correction in the sentencing procedure.
Dietz, ninety-one years of age, was charged originally with the offense of sexual battery on a child eleven years of age or younger. In 1985, a plea negotiation resulted in Dietz pleading nolo contendere to a lesser included offense of attempted sexual battery on a child eleven years of age or younger. Dietz thereafter was sentenced to two years community control followed by six years probation.
On September 15,1987, Dietz’s community control officer filed an affidavit charging Dietz with violation of community con trol. The affidavit, in pertinent part, stated as follows:
Affiant further states that the community controlee has not properly conducted himself, but has violated the conditions of his community control in a material respect by VIOLATION OF CONDITION (8) which states, "You will promptly and truthfully answer all inquiries directed to you by the Court or the Community Control Officer, and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.”
IN THAT, that the community controlee was instructed to report to his Community Control Officer twice a day by phone and has failed to do so.
VIOLATION OF CONDITION (11) which states: “You will remain confined to your approved residence except for one half hour before and after your approved employment, public service work or any other special activities approved by your Community Control Officer.”
IN THAT, the Community Controlee left his place of approved residence on 8/28/87 on or about 4:20 P.M. and on 8/30/87 on or about 12:30 P.M. without the knowledge or consent of his Community Control Officer. Appellant entered a plea of not guilty to the charge.
At the hearing on the alleged violation, Thomas Martin, the community control officer, testified that he explained all conditions of community control to Dietz. These conditions included requiring Dietz to telephone the community control officer twice a day and forbidding Dietz to leave his residence without permission, except that Dietz was permitted to conduct his personal business on Fridays between noon and 3:30 p.m.
Martin testified that on Friday, August 28, 1987, at 4:20 p.m., he went to Dietz’s home. Martin testified he knocked on the front door, knocked on the windows on all sides of the house, and knocked on the side door. Martin received no response and found both doors locked. Two other probation officers who supervised Dietz on other charges testified that Dietz did not have a hearing problem and that he answered the door each time they knocked or rang the doorbell.
Martin testified that the community control officer maintains a telephone log to record incoming telephone calls from community controlees. Martin then testified that the log reflected only three calls from Dietz from August 26, 1987, to September 1, 1987.
Dietz testified that he was at home at the time Martin came to the residence and testified he had telephoned as required. A neighbor of Dietz testified that it often was difficult to reach Dietz unless the doorbell was rung ten to twelve times.
Following the evidence and argument, the trial judge announced that Dietz had violated his community control; however, the judge failed to make a finding regarding the conditions that Dietz had violated. The trial judge thereafter entered a written order which found that Dietz was guilty of violating his probation but again failed to specify the conditions of community control which were violated. The judge sentenced Dietz to ten years in prison.
We find that the state failed to meet its burden of proof regarding a violation of condition eight. The information contained in the telephone logs was hearsay, and the state did not establish the necessary foundation to admit this evidence as an exception to 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, 473 So. 2d 818 (Fla. 2d DCA 1985). There was competent, substantial evidence presented to the trial judge that Dietz was not home at a time when he was required to be there, and we shall not disturb that finding. Although Dietz argues that the state was required to prove Dietz’s whereabouts to establish Dietz was not at home, we do not perceive this as the state’s burden.
The order revoking community control must specify the conditions which have been violated. Coley v. State, 479 So. 2d 277 (Fla. 2d DCA 1985). We remand the case for entry of an order of revocation of community control which finds a violation of condition eleven. Dietz need not be present for this purpose.
Although this decision will result in incarcerating a ninety-one year old man, we observe that community control was established by the legislature as an alternative to a state prison sentence. § 948.10, Fla. Stat. (1985). A defendant sentenced under this program may suffer sanctions which can include, among others, curfew, deprivation of nonessential activities or privileges, and other appropriate restraints on the offender’s liberty. § 948.01(4)(a), Fla.Stat. (1985). This program is, in effect, an at home prison sentence. Any defendant sentenced under this program should realize that the sentence was an alternative to prison and a willful violation of one of the program’s conditions would result in imprisonment.
The judgment and sentence are affirmed.
Affirmed in part; reversed in part. Remanded for proceedings consistent with this opinion.
DANAHY, A.C.J., and SCHOONOVER, J„ concur.
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Citator
Cited By (17 total)
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Lambert Keith Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991)…by itself to support revocation of Gavins’s community control. See Neves v. State, 502 So. 2d at 1344 (failure to file monthly reports is a substantial violation of probation sufficient by itself to support revocation of probation); Dietz v. State, 534 So. 2d 808 (Fla. 2d DCA 1988) (state met its burden of proving a violation of community control where it presented sub [*492] stantial, competent evidence showing that the defendant was not home at a time when he was required to be there). However, the orders…
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Haynes v. State, 571 So. 2d 1380 (Fla. 2d DCA 1990)…so. The trial court, accordingly, did not abuse its discretion by finding that the appellant had violated conditions (9) and (11) of his community control and revoking the appellant’s communi [*1382] ty control for those violations. Dietz v. State, 534 So. 2d 808 (Fla. 2d DCA 1988). The court failed, however, to enter a written order setting forth the conditions that were violated. We, accordingly, must remand for the entry of a proper order setting forth the conditions of community control which the state p…
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Porras v. State, 651 So. 2d 183 (Fla. 3d DCA 1995)…As to point II, we affirm. It is undisputed that the defendant was away from his residence without permission, contrary to the terms of the community control order. This is a sufficient basis for the revocation of community control. Dietz v. State, 534 So. 2d 808 (Fla. 2d DCA 1988); Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987). Whether, under the circumstances, the defendant’s violation should have been excused was a matter for the discretion of the trial court. The revocation of community control is a…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alton H. Coley v. State, 479 So. 2d 277 (Fla. 2d DCA 1985)
- McCRARY v. State, 464 So. 2d 670 (Fla. 2d DCA 1985)
- Swift v. State, 473 So. 2d 818 (Fla. 2d DCA 1985)