BRIAN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation based on change of residence because the sole evidence was inadmissible hearsay from a family member, but affirmed the attempted burglary violation and remanded for the trial court to determine whether revocation remains appropriate based on that violation alone.
A probation revocation cannot be based solely on hearsay testimony from a family member to a probation officer regarding the probationer's residence.
[1] Probation revocation based on change of residence cannot rest solely on hearsay testimony from a family member to a probation officer, despite hearsay's general admissibi…
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Join FLexlaw to unlock all legal intelligence“a court cannot revoke probation based solely on a hearsay statement by a family member to a probation officer that the probationer does not live at a certain address”
Court's statement of the legal standard for probation revocation based on residence change
Brian Smith was found in violation of probation for changing his residence without consent and attempted burglary. The only evidence of residence chan…
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PER CURIAM.
The trial court found appellant, Brian Smith, to be in violation of his probation for changing his residence without the consent of his probation officer and attempted burglary. The only evidence of a change of residence was the probation officer’s testimony that Smith’s grandmother had said that Smith moved in with his girlfriend. Although hearsay is admissible in revocation proceedings, a court cannot revoke probation based solely on a hearsay statement by a family member to a probation officer that the probationer does not live at a certain address. Brown v. State, 659 So. 2d 1260, 1261-62 (Fla. 4th DCA 1995). There was no other evidence on this portion of the charge. Compare Dunham v. State, 683 So. 2d 507 (Fla. 4th DCA 1996), aff'd, 686 So. 2d 1356, 22 Fla. L. Weekly S49 (Fla. Jan. 23, 1997). We therefore reverse the finding of a violation of probation on that ground.
As to the other violation, we find no abuse of discretion. See Bernhardt v. State, 288 So. 2d 490, 501 (Fla.1974). Because we cannot tell from this record whether the court would have revoked probation or whether Smith’s sentence would have been the same had the court found only one violation, we remand the case to the trial court.. Brown, 659 So. 2d at 1262. On remand, if the court determines that revocation is still appropriate, it must enter a written order of revocation. E.g., Horne v. State, 675 So. 2d 247 (Fla. 4th DCA 1996).
FARMER, STEVENSON and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Garcia v. State, 701 So. 2d 607 (Fla. 2d DCA 1997)…842 (Fla. 2d DCA 1997) (holding that testimony of probation officer that landlord told him probationer moved from approved residence was hearsay and could not support revocation of probation without additional non-hearsay evidence); Smith v. State, 690 So. 2d 733 (Fla. 4th DCA 1997) (concluding that testimony of probation officer that probationer’s grandmother told him that probationer no longer lived at residence, without non-hearsay evidence, was insufficient to support probation revocation). The only non-…
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Santiago v. State, 889 So. 2d 200 (Fla. 4th DCA 2004)…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 statement by the Wife that Santiago was at her house and slapped…
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Latasia Webb v. State, 154 So. 3d 1186 (Fla. 4th DCA 2015)…6 So. 2d 842, 843 (Fla. 2d DCA 1997) (testimony of probation officer that landlord told him probationer moved from approved residence was hearsay and could not support revocation of probation without additional non-hearsay evidence); Smith v. State, 690 So. 2d 733, 734 (Fla. 4th DCA 1997) (testimony of probation officer that probationer’s grandmother told him that probationer no longer lived at residence, without non-hearsay evidence, was insufficient to support probation revocation); Brown v. State, 659 So.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- Brown v. State, 659 So. 2d 1260 (Fla. 4th DCA 1995)
- Dunham v. State, 686 So. 2d 1356 (Fla. 1997)
- Dunham v. State, 683 So. 2d 507 (Fla. 4th DCA 1996)
- Sola Caribe, Inc. v. Progressive Tech., Inc., 675 So. 2d 247 (Fla. 4th DCA 1996)