PATRICK GLENN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patrick Glenn appealed the revocation of his probation and the resulting sentences imposed by the trial court. The Florida Second District Court of Appeal reversed the revocation, finding the state failed to establish a willful and substantial violation of probation based on the evidence presented.
The court reversed the probation revocation because the state failed to establish a willful and substantial violation. The technical omission of one late monthly report, which Glenn rectified, could not support revocation; and the intoxication violation was based entirely on inadmissible hearsay without the probation officer's personal knowledge or the law enforcement officers' testimony. The court also noted the sentences were illegal as imposed without valid departure reasons.
[1] A technical omission in a probation report, which is eventually rectified, is not by itself a substantial violation sufficient to support the revocation of probation.
[2] Probation cannot be revoked solely on the basis of hearsay evidence, even if that evidence is admissible at a violation of probation hearing.
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Join FLexlaw to unlock all legal intelligence“The technical omission of failing to submit one monthly report, which Glenn eventually rectified, by itself, cannot be deemed a substantial violation that would support the revocation of Glenn's probation.”
Establishes that minor technical violations that are corrected do not support probation revocation
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Join FLexlaw to unlock all legal intelligenceGlenn was on probation for two felony convictions. A probation officer testified that Glenn failed to submit one monthly report timely (which he event…
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PARKER, Judge.
Patrick Glenn alleges in this appeal that the trial court erred in revoking his probation and in the sentence it imposed upon the revocation. We agree and reverse.
Glenn was placed on probation for two separate felony convictions. An affidavit for violation of probation was filed in each case. At Glenn’s revocation hearing, probation officer Velma Williams testified that Glenn failed to submit one monthly report in a timely manner. Williams also testified that according to a police report Glenn allegedly was intoxicated while on probation, but that she personally did not know him to be, nor did he appear to be drinking or intoxicated. The law enforcement officers who reported that Glenn was intoxicated were subpoenaed but did not appear at the hearing. The court revoked Glenn’s probation and sentenced him to concurrent terms of thirty-months in prison in both cases, followed by two years of community control. Glenn’s sentencing guidelines scoresheet called for twelve to thirty months in prison or community control. Glenn filed two motions to correct illegal sentences, alleging that his sentences were illegal because he was sentenced to state prison to be followed by community control, which exceeded the recommended sentence under the guidelines without the support of valid reasons for the departure. The trial court denied the motions.1
The technical omission of failing to submit one monthly report, which Glenn eventually rectified, by itself, cannot be deemed a substantial violation that would support the revocation of Glenn’s probation. See Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988). Further, it is well established that a defendant’s probation cannot be revoked solely on the basis of hearsay evidence, although that evidence is admissible at a violation of probation hearing. McCrary v. State, 464 So. 2d 670 (Fla. 2d DCA 1985). Here, the violation for the reason of Glenn’s intoxication was predicated entirely upon hearsay evidence, since the probation officer admittedly had no personal knowledge of that claim. Because the state failed to establish a willful and substantial violation by Glenn, we reverse the order of revocation.2
Reversed.
FRANK, A.C.J., and ALTENBERND, J., concur. . Although we do not reach this issue, we observe that the sentences imposed by the trial court upon its revocation of Glenn’s probation were illegal. See VanKooten v. State, 522 So. 2d 830 (Fla.1988). Pursuant to VanKooten, the imposition of incarceration and community control constitutes a departure from Glenn’s recommended guidelines sentence of “30 months or community control,” necessitating proper written reasons for the departure. Because no departure reasons were stated by the trial court, it erred in denying Glenn's motions to correct the illegal sentences.
. In the order of revocation, Glenn also was found to have violated other conditions of his probation. These violations, however, were not addressed at the violation of probation hearing and, as such, should not have been included in that order as bases for revoking Glenn’s probation.
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State v. Carter, 835 So. 2d 259 (Fla. 2002)…ype of isolated technical probation violation does not rise to the level of a revocable violation. See e.g., Butler v. State, 775 So. 2d 320, 321 (Fla. 2d DCA 2000); Sanders v. State, 675 So. 2d 665, 665-66 (Fla. 2d DCA 1996) (citing Glenn v. State, 558 So. 2d 513 (Fla. 2d DCA 1990)); Moore v. State, 632 So. 2d 199, 199 (Fla. 1st DCA 1994). Moreover, today’s majority decision gives little guidance to the trial courts as to when the failure to file a single report, standing alone, would be considered a materi…
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Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000)…tate, 675 So. 2d 665 (Fla. 2d DCA 1996). This court has held that the technical omission of failing to submit one monthly report, by itself, does not support revocation because it is not a substantial violation. See Sanders. See also Glenn v. State, 558 So. 2d 513 (Fla. 2d DCA 1990). But see Williams v. State, 728 So. 2d 287 (Fla. 2d DCA 1999) (citing First District case for proposition that failure to file monthly reports is sufficient basis to revoke probation). We conclude that this violation alone would n…
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Sanders v. State, 675 So. 2d 665 (Fla. 2d DCA 1996)…report for February 1995. The appellant admitted that he failed to file the report. The technical omission of failing to submit one monthly report, by itself, is not a substantial violation that would support revocation of probation. Glenn v. State, 558 So. 2d 513 (Fla. 2d DCA 1990). Because the evidence presented at the revocation hearing fails to demonstrate a willful and substantial violation of probation, we reverse the order of revocation of probation. We need not address the other points on appeal. Rev…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988)
- McCRARY v. State, 464 So. 2d 670 (Fla. 2d DCA 1985)