MARTIN QUENTIN PERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Perry appealed his probation revocation sentence, claiming ineffective assistance of counsel because his attorney did not object when the state called him as a witness to testify about probation violations. The court affirmed, holding that probationers effectively waive Fifth Amendment privileges regarding non-criminal probation violations by accepting probation terms, and that Perry's own testimony constituted direct evidence rather than hearsay.
Perry was not denied effective assistance of counsel because any objection would have been overruled. A probationer effectively waives Fifth Amendment privileges regarding non-criminal probation violations by accepting probation terms. Perry's testimony constituted direct evidence rather than hearsay, and the trial court properly required him to testify about non-criminal conditions of his probation.
[1] A probationer waives the Fifth Amendment privilege against self-incrimination concerning information that would disclose a probation violation by agreeing to accept the t…
[2] The Fifth Amendment privilege against self-incrimination is applicable to conduct and circumstances concerning a separate criminal offense, not to non-criminal conditions…
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Join FLexlaw to unlock all legal intelligence“A probationer may not refuse to answer a question, just because the answer would disclose a probation violation. His or her agreement to accept the terms of probation effectively waives a Fifth Amendment privilege with regard to this information.”
Establishes the core legal principle that probationers waive Fifth Amendment rights regarding probation violations by accepting probation terms
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Join FLexlaw to unlock all legal intelligencePerry was on probation when the state called him as a witness at his probation revocation hearing to testify about alleged violations. Perry's defense…
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This is an expedited appeal from a sen- • fence following revocation of probation. Perry argues he was denied effective assistance of counsel at his probation hearing because his defense attorney did not object when the state called Perry as a witness, and examined him regarding the alleged violations of his probation and because the revocation was based on “hearsay.” We affirm.
In this case, Perry testified on his own behalf, as well as a witness called by the state. Thus, his testimony concerning the violations is not hearsay, but direct evidence. Nor do we think Perry’s Fifth Amendment rights against self-incrimination were involved in this proceeding.
A probationer may not refuse to answer a question, just because the answer would disclose a probation violation. His or her agreement to accept the terms of probation effectively waives a Fifth Amendment privilege with regard to this information. That privilege is applicable to conduct and circumstances concerning a separate criminal offense. See Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 1147, n. 7, 79 L.Ed.2d 409 (1984); State v. Heath, 343 So. 2d 13 (Fla.), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977); Cassamassima v. State, 657 So. 2d 906 (Fla. 5th DCA 1995); Bearing v. State, 388 So. 2d 296 (Fla. 3d DCA 1980), rev. denied, 399 So. 2d 1141 (Fla.1981); Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980).
In this case, the questions posed by the state attorney related to non-criminal conditions of Perry’s probation and not separate offenses. Thus even if defense counsel had objected to the state calling Perry as a witness, his objection would have been overruled. See Bearing (trial court properly required probationer to testify at revocation hearing that he had pled guilty to a federal offense committed while he was on probation); Watson (trial court acted properly in requiring probationer to testify to questions posed by the state at revocation hearing).1
AFFIRMED.
PETERSON and ORFINGER, JJ., concur. . Landeverde v. State, 769 So. 2d 457 (Fla. 4th DCA 2000), cited by Perry, does not involve requiring a probationer to testify about noncriminal violations of probation. Rather, that case involved an attempt by the defendant to force his co-defendant to testify over his Fifth Amendment objection. The co-defendant faced the possibility of enhanced sentencing if his trial testimony showed that he had a greater participation in the crimes or a more extensive criminal history than provided at his plea and sentencing hearing.
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del Valle v. State, 80 So. 3d 999 (Fla. 2011)…dings, see Peters v. State, 984 So. 2d 1227, 1234 (Fla.2008). Florida courts have also held that the State has the right to call the defendant as a witness to testify about noncriminal matters in probation revocation proceedings. See Perry v. State, 778 So. 2d 1072, 1073 (Fla. 5th DCA 2001). To revoke probation, a court must only conclude and determine that a substantial violation of the terms of probation occurred. See Wheeler v. State, 344 So. 2d 630, 632 (Fla. 2d DCA 1977). Requiring the probationer to esta…
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Valentine Sears v. State, 889 So. 2d 956 (Fla. 5th DCA 2004)…for the violation of probation, even though Mr. Sears had still not been sworn in, had not been called to the stand, and was not advised regarding his right [*959] against self incrimination with respect to this separate offense. See Perry v. State, 778 So. 2d 1072 (Fla. 5th DCA 2001). At the conclusion of this last series of questions, the trial court abruptly found Mr. Sears guilty of violating his probation, and sentenced him to prison. This appeal followed. Every criminal defendant is entitled to court pr…
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E.P. v. State, 901 So. 2d 193 (Fla. 4th DCA 2005)…is or her agreement to accept the terms of probation effectively waives a Fifth Amendment privilege with regard to this information. , That privilege is applicable to conduct and circumstances concerning a separate criminal offense. Perry v. State, 778 So. 2d 1072, 1073 (Fla. 5th DCA 2001) (citing Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) State v. Heath, 343 So. 2d 13 (Fla.1977); Cassamassima v. State, 657 So. 2d 906 (Fla. 5th DCA 1995); Dearing v. State, 388 So. 2d 296 (Fla. 3d…
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
- Minnesota v. Murphy, 465 U.S. 420 (U.S. 1984)
- State v. Heath, 343 So. 2d 13 (Fla. 1977)
- Cassamassima v. State, 657 So. 2d 906 (Fla. 5th DCA 1995)
- Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980)
- Heath v. Florida, 434 U.S. 893 (U.S. 1977)
- Bennett v. Director of Internal Revenue for North Carolina, 434 U.S. 893 (U.S. 1977)
- Dearing v. State, 388 So. 2d 296 (Fla. 3d DCA 1980)
- Smith v. McELROY, 769 So. 2d 457 (Fla. 1st DCA 2000)
- Landeverde v. State, 769 So. 2d 457 (Fla. 4th DCA 2000)