MARK DURDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Durden appealed a final order revoking his community control on four alleged violations. The appellate court reversed on three grounds due to evidentiary defects and temporal issues, and remanded for reconsideration based on the single valid violation (failure to report).
The court reversed the revocation orders on grounds one, three, and four due to insufficient evidence (hearsay only) and temporal invalidity, leaving only the failure to report as a valid violation. The court remanded for the trial court to reconsider and re-sentence based solely on the admitted failure to report violation.
[1] A violation of community control cannot be based on conduct that occurred after the sentence of community control and probation has expired.
[2] Hearsay evidence alone is insufficient to prove a violation of community control.
Previewing 2 of 3 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“Neither can grounds one and three be relied upon because the proof adduced to support them was solely hearsay.”
Establishes the evidentiary standard requiring more than hearsay to support violation findings in community control revocation proceedings.
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Join FLexlaw to unlock all legal intelligenceDurden was placed on community control and probation. The state alleged four violations: (1) moving residence without permission, (2) failing to repor…
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[*641] DOWNEY, Judge.
This is an appeal from a final order finding appellant had violated the terms and conditions of his community control in four respects: 1) he had moved his residence without permission so that his whereabouts were unknown, 2) he failed to report, 3) he had not paid the cost of supervision, and 4) during a routine traffic stop and subsequent search of his vehicle, he was found in possession of cocaine.
At the hearing on the merits of said alleged violations, the evidence reflects that appellant admitted not reporting, but stated that the community control officer was threatening to “violate him” unless he furnished the officer with drugs. Grounds one and three above were proven by hearsay evidence only. The episode involved in ground four occurred after the sentence to community control and probation had expired. Thus, it could not be a valid ground for violation. McPherson v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988). Neither can grounds one and three be relied upon because the proof adduced to support them was solely hearsay. Id.
As we held in Davis v. State, 474 So. 2d 1246 (Fla. 4th DCA 1985), this leaves us in doubt as to whether the trial court would have revoked appellant’s community control for the one violation and, if so, whether the sentence would have been the same. Accordingly, we affirm in part and reverse in part, and remand to the trial court with directions to eliminate grounds one, three, and four from the court’s order. We request the trial court to reconsider the matter in the light of this opinion and re-sentence appellant as he deems proper, which may include the same sentence previously given if he be so disposed.
GLICKSTEIN and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thomas v. State, 711 So. 2d 96 (Fla. 4th DCA 1998)…ment by the trial court reflecting the reasons for the revocation. We therefore affirm the revocation but remand for the written order. Mitchell v. State, 681 So. 2d 891 (Fla. 4th DCA 1996). STONE, C.J., and GROSS, J„ concur. . Durden v. State, 577 So. 2d 640 (Fla. 4th DCA 1991); Vezina v. State, 644 So. 2d 602 (Fla. 1st DCA 1994); Purvis v. State, 420 So. 2d 389 (Fla. 5th DCA 1982).…
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Larangera v. State, 686 So. 2d 697 (Fla. 4th DCA 1996)…e specific findings in writing regarding the change of address charges and determine whether these violations alone warrant revocation, and if so, imposition of the same sentence. Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991), Durden v. State, 577 So. 2d 640 (Fla. 4th DCA 1991). WARNER, J., and HAZOURI, FREDERICK A., Associate Judge, concur.…
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Tracy v. State, 673 So. 2d 544 (Fla. 4th DCA 1996)…revocation does not conform to the oral pronouncement which found only three. We find no error in the other grounds for revocation, but remand for reconsideration in light of our conclusion that one of the grounds was improper. See Durden v. State, 577 So. 2d 640 (Fla. 4th DCA 1991). KLEIN, PARIENTE and GROSS, JJ., concur.…
Authorities Cited
- McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)
- Ranzel Davis v. State, 474 So. 2d 1246 (Fla. 4th DCA 1985)