THOMAS E. MCCARRICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas McCarrick appealed the revocation of his probation, arguing the trial court relied solely on hearsay evidence to support the violation findings. The appellate court agreed and reversed, holding that while probation revocation hearings need not follow strict rules of evidence, revocation cannot be based solely on hearsay without nonhearsay corroborating evidence.
The court held that while probation revocation hearings are not subject to strict rules of evidence, revocation cannot be based solely on hearsay. To justify revocation, the court must be satisfied the violation was willful and substantial and supported by the greater weight of the evidence, which requires nonhearsay evidence in addition to hearsay documents.
[1] A trial court may consider hearsay evidence in a probation revocation hearing, but the greater weight of the evidence must support a finding that the violation was willfu…
[2] Revocation of probation cannot be based solely on hearsay evidence when the defendant presents uncontroverted testimony denying the alleged violations.
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Join FLexlaw to unlock all legal intelligence“to justify revocation the court must be satisfied the violation was willful and substantial and was supported by the greater weight of the evidence”
Establishes the standard required for probation revocation beyond mere procedural leniency.
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Join FLexlaw to unlock all legal intelligenceMcCarrick was placed on five-year probation for escape. The state charged him with violating probation by failing to file written reports, failing to …
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SCHEB, Acting Chief Judge.
The defendant, Thomas McCarrick, contends the trial court erred in revoking his probation solely on the basis of hearsay evidence. We agree and reverse. McCarrick was placed on five years’ probation for escape. Later, the state charged him with violations for not filing written reports, not paying costs, and not informing his probation officer after he moved and changed employment. At the revocation hearing, Patricia Steele, McCarrick’s new probation officer, testified that she had never met McCarrick and had no personal knowledge of his case. Over numerous defense objections, Steele read the charged violations from the affidavit prepared by the former probation officer and identified the probation order signed by McCarrick which stated that he knew his responsibilities.
McCarrick testified that he made his monthly reports and payments until instructed not to. He moved and changed employment with his former probation officer’s knowledge and consent. The trial judge revoked McCarrick’s probation and sentenced him to one year community control.
In a probation revocation hearing, the trial judge is not required to follow the strict rules of evidence and can consider affidavits and other documents which are relevant, even though such may not be admissible in a criminal trial. Wheeler v. State, 344 So. 2d 630 (Fla.2d DCA 1977). However, to justify revocation the court must be satisfied the violation was willful and substantial and was supported by the greater weight of the evidence. Singletary v. State, 537 So. 2d 674 (Fla.2d DCA 1989); Hightower v. State, 529 So. 2d 726 (Fla.2d DCA 1988).
The probation officer who testified admitted she did not know McCarrick nor have any personal knowledge of his case. McCarrick’s uncontroverted testimony denied any violations. The only evidence the state presented to support the alleged violations was the affidavit of violation of probation, which was the charging instrument, and the probation order. Although these documents may have been admissible hearsay, a question not reached here, revocation was improper absent nonhearsay evidence. McCrary v. State, 464 So. 2d 670 (Fla.2d DCA 1985).
Reversal of an order revoking probation on the ground that it was based solely on hearsay does not ordinarily bar a second revocation hearing based on the filing of another affidavit alleging the same violation. Tuff v. State, 338 So. 2d 1335 (Fla.2d DCA 1976). Here, however, it appears McCarrick has served the period of community control. If so, the trial court has no further jurisdiction to revoke probation or community control. Frazier v. State, 510 So. 2d 646 (Fla.2d DCA 1987).
Accordingly, we reverse the revocation of McCarrick’s probation.
SCHOONOVER and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Chavous v. State, 597 So. 2d 943 (Fla. 2d DCA 1992)…the appeal. However, reversal of an order revoking probation on the ground it was based solely on hearsay does not ordinarily bar a second revocation hearing based on the filing of another affidavit alleging the same violation. McCarrick v. State, 553 So. 2d 1373 (Fla. 2d DCA 1989); Tuff. Because the underlying probationary period will not expire until November 1992, the state may again attempt to prove a violation. Reversed. THREADGILL and ALTENBERND, JJ., concur.…
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Queior v. State, 157 So. 3d 370 (Fla. 2d DCA 2015)…Queior’s probation on the ground that it was based solely on hearsay would not ordinarily preclude another revocation hearing after the filing of a new affidavit alleging the same violation. See Chavous, 597 So. 2d at 944 (citing McCarrick v. State, 553 So. 2d 1373 (Fla. 2d DCA 1989)). The State may again attempt to prove Mr. Queior’s violations of conditions five and seven on January 7, 2013, so long as it files another affidavit of violation before Mr. Queior’s probationary period expires. Reversed and rema…
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Wilson v. State, 842 So. 2d 237 (Fla. 2d DCA 2003)…State is not precluded from attempting to prove another violation based on the same circumstances on remand as long as the period of community control has not expired. See Chavous v. State, 597 So. 2d 943, 944 (Fla. 2d DCA 1992); McCarrick v. State, 553 So. 2d 1373, 1374 (Fla. 2d DCA 1989). Reversed and remanded. SILBERMAN and CANADY, JJ„ Concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988)
- Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976)
- Wheeler v. State, 344 So. 2d 630 (Fla. 2d DCA 1977)
- McCRARY v. State, 464 So. 2d 670 (Fla. 2d DCA 1985)
- Singletary v. State, 537 So. 2d 674 (Fla. 2d DCA 1989)
- Frazier v. State, 510 So. 2d 646 (Fla. 2d DCA 1987)