CECIL DWAYNE BALES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that hearsay evidence, standing alone, cannot be the sole basis for revoking community control.
[1] Hearsay evidence inadmissible in a criminal trial cannot form the sole basis for revoking probation.
[2] A police officer's testimony recounting a victim's statements about a domestic altercation, without more, may constitute inadmissible hearsay at a probation revocation he…
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Join FLexlaw to unlock all legal intelligenceCecil Bales's probation was revoked based on his probation officer's affidavit alleging battery and visiting a pub. The only evidence presented was a …
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NORTHCUTT, Judge.
Cecil Bales contends the evidence was insufficient to support the circuit court’s order revoking his community control. We agree and reverse.
Bales’s probation officer filed an affidavit alleging that Bales had violated condition 5 of his community control by committing the new offense of battery and that he had visited a pub in violation of condition 12, which required him to remain at his approved residence. At the revocation hearing, the only evidence that supported the charge was that of a police officer who interviewed Bales’s girlfriend, Cathy McCarthy, at the hospital. The officer testified that McCarthy recounted having a domestic altercation with Bales at a pub. According to the officer, McCarthy said Bales had punched her in the face and pushed her. The officer observed some redness on her elbow. He interviewed no other witnesses. Bales’s probation officer testified that he had not given permission for Bales to go to the pub. The court found that Bales had violated condition 5 by battering McCarthy.
Hearsay evidence that would be inadmissible in a criminal trial cannot form the sole basis for revoking probation. Gammon v. State, 778 So. 2d 390, 392 (Fla. 2d DCA 2001). Here, the court grounded its finding on the officer’s description of McCarthy’s statements at the hospital. Standing alone, this pure hearsay was insufficient.
The State argues that McCarthy’s statements would have been admissible at a criminal trial under the excited utterance exception to the hearsay rule. The officer did briefly refer to McCarthy’s agitated state at the time she made her statements. But he also related that the alleged battery had occurred “earlier that day.” The officer’s testimony did not meet the prerequisites for admission of hearsay under the exception, i.e., that the statements relate to a startling event or condition and were made while the declarant was under the stress of excitement caused by the event or condition. See § 90.803(2), Fla. Stat. (2000).
Accordingly, we reverse the order revoking Bales’s community control.
PARKER, A.C.J., and CASANUEVA, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dean v. State, 948 So. 2d 1042 (Fla. 2d DCA 2007)…y did not otherwise further the State’s theory or burden of proof. Moreover, a positive (Dean used alcohol) may not be inferred from a negative (Dean denied using alcohol). Thus, “[standing alone, this pure hearsay was insufficient.” Bales v. State, 793 So. 2d 87, 88 (Fla. 2d DCA 2001). Because the State failed to prove that Dean willfully and substantially violated his probation, we reverse the order revoking his probation and remand for Dean’s reinstatement on probation. Reversed and remanded for reinstat…
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Miller v. State, 958 So. 2d 981 (Fla. 2d DCA 2007)…ony on this issue was hearsay. Although hearsay evidence is generally admissible at a revocation hearing, a revocation of probation may not be based solely on hearsay evidence. Dean v. State, 948 So. 2d 1042, 1044 (Fla. 2d DCA 2007); Bales v. State, 793 So. 2d 87 (Fla. 2d DCA 2001). For example, in Bales, the State filed an affidavit alleging that Bales had violated his community control by committing the offense of battery and by visiting a pub. 793 So. 2d at 87. At the revocation hearing, the only evidenc…
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Arndt v. State, 815 So. 2d 674 (Fla. 5th DCA 2002)…erning the victim’s reddened face and ear and a description of Arndt’s appearance. The lack of a photograph of the victim’s reddened face and ear does not render the evidence insufficient. Contrary to Arndt’s contention, the case of Bales v. State, 793 So. 2d 87 (Fla. 2d DCA 2001) does not dictate a different result. Although a witness in that case testified to seeing redness on the elbow of the victim, the trial court did not utilize that evidence in reaching the conclusion that the evidence of a probation…1 / 2
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- Gammon v. State, 778 So. 2d 390 (Fla. 2d DCA 2001)