STEVEN KIESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal affirmed the revocation of Steven Kiess's probation based on his conviction for battery on a law enforcement officer, but struck the portion of the revocation order finding a violation based on unauthorized contact with his stepchildren, holding that such contact was not an express condition of probation.
The court affirmed the revocation based on the battery conviction but struck the finding regarding contact with stepchildren. Hearsay evidence alone is insufficient to establish a probation violation, and violations of conditions imposed by a probation officer (rather than express trial court conditions) cannot serve as a basis for revocation. The battery violation alone was substantial enough to warrant revocation.
[1] Hearsay evidence alone is insufficient to establish a violation of a condition of probation.
[2] A violation of a condition imposed by a probation officer, rather than an express condition set by the trial court, cannot serve as a basis for revocation of probation.
Previewing 2 of 4 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“hearsay alone is insufficient to establish a violation of a condition of probation”
Establishes the evidentiary standard required for probation violations despite hearsay being admissible in such proceedings
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Join FLexlaw to unlock all legal intelligenceKiess was on probation with a special condition prohibiting 'physical contact' with his two stepchildren. The trial court found two violations: (1) ba…
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PARIENTE, Judge.
We affirm the trial court’s order revoking defendant’s probation because the evidence presented at the hearing supports the finding that defendant violated his probation by committing battery on a law enforcement officer. However, we strike that portion of the revocation order finding that defendant violated his probation by having “contact” with the stepchildren as this condition was not set forth in the order of probation.
The sole special condition of probation imposed by the trial court was that defendant have no “physical contact” with his two stepchildren. Only hearsay evidence was presented concerning violation of this special condition. While hearsay evidence is admissible in probation revocation proceedings, hearsay alone is insufficient to establish a violation of a condition of probation. Arnold v. State, 497 So. 2d 1356 (Fla. 4th DCA 1986); Davis v. State, 474 So. 2d 1246 (Fla. 4th DCA 1985); Combs v. State, 351 So. 2d 1103 (Fla. 4th DCA 1977).
The order of probation did not prohibit “contact” with defendant’s stepchildren. We note, however, that the affidavit of violation of probation and order revoking probation states that defendant violated his probation by having contact with his stepchildren in violation of the instructions of his probation officer. Violation of a condition which is imposed by a probation officer, rather than an express condition of the trial court, cannot serve as a basis for revocation of probation. Ashrafi v. State, 534 So. 2d 886 (Fla. 4th DCA 1988); Morales v. State, 518 So. 2d 964 (Fla. 3d DCA 1988).
Although the trial court could not find a violation of probation based solely on either contact with his stepchildren or the hearsay account of the physical contact incident, the single violation established of battery on a law enforcement officer is substantial enough to warrant revocation. See Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979); Compare Davis. Accordingly, we need not remand this cause for reconsideration by the trial court. We strike paragraph II from the order of revocation and affirm the order of revocation in all other respects.
WARNER and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Waldon v. State, 670 So. 2d 1155 (Fla. 4th DCA 1996)…earings. We have several times held that probation or community control may not be revoked for violation of a condition or requirement imposed unilaterally by the probation officer but not by the sentencing order. See, [*1158] e.g., Kiess v. State, 642 So. 2d 1141 (Fla. 4th DCA 1994); Voudry v. State, 641 So. 2d 466 (Fla. 4th DCA 1994); and Ashrafi v. State, 534 So. 2d 886 (Fla. 4th DCA 1988); see also Morales v. State, 518 So. 2d 964 (Fla. 3d DCA 1988); Hutchinson v. State, 428 So. 2d 739 (Fla. 2d DCA 1983)…
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Santiago v. State, 889 So. 2d 200 (Fla. 4th DCA 2004)…4th DCA 2000); Hern v. State, 747 So. 2d 1039, 1040 (Fla. 4th DCA 1999). “While hearsay evidence is admissible in probation revocation proceedings, hearsay alone is insufficient to establish a violation of a condition of probation.” Kiess v. State, 642 So. 2d 1141, 1142 (Fla. 4th DCA 1994). See Smith v. State, 690 So. 2d 733, 734 (Fla. 4th DCA 1997); Brown v. State, 659 So. 2d 1260, 1261-62 (Fla. 4th DCA 1995). At bar, the trial court heard hearsay evidence consisting of second-hand statements and a taped st…
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Ovid Miller v. State, 661 So. 2d 353 (Fla. 4th DCA 1995)…conducted these meetings; thus, no counselors could verify his attendance. While hearsay evidence is admissible in probation revocation proceedings, hearsay alone is insufficient to establish a violation of a condition of probation. Kiess v. State, 642 So. 2d 1141, 1142 (Fla. 4th DCA 1994); Arnold v. State, 497 So. 2d 1356 (Fla. 4th DCA 1986); Davis v. State, 474 So. 2d 1246 (Fla. 4th DCA 1985); Combs v. State, 351 So. 2d 1103 (Fla. 4th DCA 1977). Thus in Grant v. State, 616 So. 2d 1184, 1185 (Fla. 3d DCA 199…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Combs v. State, 351 So. 2d 1103 (Fla. 4th DCA 1977)
- Eladio Morales v. State, 518 So. 2d 964 (Fla. 3d DCA 1988)
- Ranzel Davis v. State, 474 So. 2d 1246 (Fla. 4th DCA 1985)
- Cary Arnold v. State, 497 So. 2d 1356 (Fla. 4th DCA 1986)
- Seyed Ashrafi v. State, 534 So. 2d 886 (Fla. 4th DCA 1988)
- Corey v. State, 534 So. 2d 886 (Fla. 4th DCA 1988)