MICHAEL FRAZIER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Michael Frazier appealed the revocation of his probation. The Florida Third District Court of Appeal reversed, finding that the trial court improperly relied on inadmissible hearsay evidence and failed to account for a non-willful violation where the defendant was incarcerated and unable to comply.
The court held that probation revocation cannot be based solely on hearsay testimony of a probation officer concerning review of probation records when those records are not introduced in evidence, and probation cannot be revoked for failure to report when such failure was non-willful and beyond the defendant's physical capacity due to incarceration.
[1] A probation revocation cannot be based solely on the hearsay testimony of a probation officer concerning their review of probation records when those records are not intr…
[2] A defendant's failure to report to a probation office is not a willful violation if the defendant was arrested and incarcerated, making compliance physically impossible.
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Join FLexlaw to unlock all legal intelligence“probation revocation cannot be based solely on hearsay testimony of a probation officer concerning his review of probation records when such records are not introduced in evidence”
Establishes the evidentiary standard that underlying probation records must be admitted, not merely referenced through an officer's hearsay testimony
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Join FLexlaw to unlock all legal intelligenceFrazier was on probation and was charged with two violations: failing to appear for an initial probation intake visit and failing to report to the pro…
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PER CURIAM.
This is an appeal by the defendant Michael Frazier from a final order revoking his probation. We reverse.
First, the sole evidence adduced at the probation revocation hearing below tending to establish that the defendant failed to appear for the initial probation intake visit, as the affidavit of probation violation charged, was the hearsay testimony of a probation officer who reviewed the probation department’s “paperwork” on the defendant. Such “paperwork” was proffered by the prosecuting attorney to the trial court as a business record, although none of the requirements for the admission of same in evidence was ever established under Section 90.803(6), Florida Statutes (1989); such “paperwork,” however, was not received in evidence by the trial court. The hearsay testimony of the probation officer was clearly admissible in evidence at the probation revocation hearing, but without doubt was insufficient to revoke the defendant’s probation based solely thereon. Brown v. State, 537 So. 2d 180 (Fla. 3d DCA 1989) (probation revocation cannot be based solely on hearsay testimony of a probation officer concerning his review of probation records when such records are not introduced in evidence); Adams v. State, 521 So. 2d 337 (Fla. 4th DCA 1988) (probation revocation reversed when based solely on probation officer’s hearsay testimony concerning her review of the probation department records, which records were never introduced in evidence).
Second, the sole evidence adduced at the probation revocation hearing tending to establish that the defendant failed to report to the probation office on January 3, 1991, as the affidavit of probation violation charged, was the testimony of the probation officer. She stated that she sent a letter to the defendant’s residence directing the defendant to report to her at the probation office on January 3, 1991, but that on December 24, 1990, the defendant was arrested and thereafter incarcerated in jail so that he could not keep the required appointment. This being so, the defendant’s failure to report to the probation office on January 3, 1991, was beyond his physical capacity to accomplish, was non-willful in nature, and therefore cannot constitute a basis for violating his probation. Drayton v. State, 490 So. 2d 229 (Fla. 2d DCA 1986) (failure to file timely monthly report not willful where defendant arrested and incarcerated); Jordan v. State, 412 So. 2d 970 (Fla. 2d DCA 1982) (failure to file timely monthly reports not willful where defendant hospitalized); Kotowski v. State, 344 So. 2d 602 (Fla. 3d DCA 1977) (no willful violation of probation where defendant’s failure to obtain consent to move from residence was due to his eviction from premises).
Because the trial court revoked the defendant’s probation based on the above two charges which were never proven, the order revoking probation and sentence imposed thereon are reversed, and the cause is remanded to the trial court with directions to restore the defendant to probation. [Also, upon the state’s confession of error, the original judgment of conviction in case no. 90-13415 should be corrected to reflect that the defendant was convicted of grand theft, rather than armed robbery. The trial court is directed to make this correction upon remand.]
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Garcia v. State, 701 So. 2d 607 (Fla. 2d DCA 1997)…the result of an arrest for an unrelated offense. See Drayton v. State, 490 So. 2d 229 (Fla. 2d DCA 1986) (holding that failure to file a monthly report was not deliberate violation of probation where probationer was incarcerated); Frazier v. State, 587 So. 2d 660 (Fla. 3d DCA 1991) (holding that failure to report to probation office as instructed was not willful violation of probation where probationer was imprisoned at time of scheduled appointment). We conclude that the State did not prove a willful viola…
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Anderson v. State, 711 So. 2d 106 (Fla. 4th DCA 1998)…evidence is admissible in probation revocation hearings, “hearsay alone is insufficient to establish a violation of a condition of probation.” Miller v. State, 661 So. 2d 353, 354 (Fla. 4th DCA 1995); see Garcia, 701 So. 2d at 608; Frazier v. State, 587 So. 2d 660, 661 (Fla. 3d DCA 1991). A probationer’s failure to timely report to the probation office is neither willful nor a violation of probation where the probationer was arrested and incarcerated before he was scheduled to appear at the probation office.…
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Nanivette Rodriguez v. State, 768 So. 2d 1234 (Fla. 5th DCA 2000)…chedule but was unable to contact her. Failure to keep the first appointment should not serve here as a basis to revoke probation because a valid explanation was given, as well as accepted, for Rodriguez’s inability to keep it. See Frazier v. State, 587 So. 2d 660 (Fla. 3d DCA 1991). A single missed appointment in May, where there was also a valid explanation proffered, is also insufficient to demonstrate willful and substantial noncompliance. See Washington v. State, 667 So. 2d 255 (Fla. 1st DCA 1995); Bingh…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Adams v. State, 521 So. 2d 337 (Fla. 4th DCA 1988)
- Brown v. State, 537 So. 2d 180 (Fla. 3d DCA 1989)
- Drayton v. State, 490 So. 2d 229 (Fla. 2d DCA 1986)
- Kotowski v. State, 344 So. 2d 602 (Fla. 3d DCA 1977)
- Jordan v. State, 412 So. 2d 970 (Fla. 2d DCA 1982)