ROYCE HARTZOG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Royce Hartzog appeals the revocation of his probation and 52.5-month prison sentence. The Florida appellate court reversed, finding the State failed to meet its burden of proving willful and substantial violations of two probation conditions due to insufficient evidence.
The Court reversed the revocation because the State failed to meet its burden on both conditions. For condition 2, the violation was based solely on hearsay evidence from Hartzog's mother without corroborating non-hearsay evidence. For condition 36, the State failed to prove Hartzog had the ability to pay but willfully refused, presenting no evidence of his financial ability to pay.
[1] A probation revocation may not be based solely upon hearsay evidence.
[2] A probation revocation for changing residence without consent may be upheld if based on hearsay coupled with some other non-hearsay evidence.
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Join FLexlaw to unlock all legal intelligence“a [revocation] of probation may not be based solely upon hearsay evidence”
Establishes the controlling legal standard that hearsay alone cannot support probation revocation
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Join FLexlaw to unlock all legal intelligenceHartzog was on probation for aggravated battery. In March 2001, the State alleged violations of two probation conditions: condition 2 (changing reside…
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BLUE, Chief Judge.
Royce Hartzog challenges an order revoking his probation and sentencing him to 52.5 months in prison, followed by seven years’ probation. We reverse because the State failed to meet its burden of proving a willful and substantial violation of probation.
Mr. Hartzog was on probation for the offense of aggravated battery. On March 21, 2001, an affidavit was filed alleging that Mr. Hartzog had violated conditions 2 and 36 of his probation. Following an evidentiary hearing, the trial court found that Mr. Hartzog had violated those conditions and revoked his probation.
Mr. Hartzog contends that the violation of condition 2 (changing his residence without first obtaining the consent of his supervising probation officer) must be reversed because the revocation was based solely on hearsay evidence, which was insufficient to establish a willful and substantial violation. He contends that the violation of condition 36 (failure to pay full monthly amount of restitution for four months) must also be reversed because the State failed to show that Mr. Hartzog willfully refused to pay his restitution.
At the evidentiary hearing, Mr. Huntley, the probation officer, testified that Mr. Hartzog was not living at his approved residence. Mr. Huntley made several home visits but never found Mr. Hartzog at the residence. Mr. Huntley testified that Mr. Hartzog’s mother told him that “she did not know [where he was living now].” The mother did not testify. Mr. Hartzog testified that he was living at the approved residence but was at work when the probation officer made the home visits.
The only testimony to directly support the violation was the mother’s hearsay statement. Hearsay is admissible at a probation revocation hearing, but “a revocation of probation may not be based solely upon hearsay evidence.” Rowan v. State, 696 So. 2d 842, 843 (Fla. 2d DCA 1997). “A revocation of probation based on changing a residence without obtaining consent of the probation officer may be upheld if it is based on hearsay coupled with some other non-hearsay evidence.” 696 So. 2d at 843. Here, there was no nonhearsay testimony to support a violation of condition 2. Accordingly, the State failed to carry its burden of proving a willful and substantial violation of condition 2.
As to condition 36, the failure to pay full monthly restitution payments, the State had the burden of establishing that Mr. Hartzog had the ability to pay but willfully refused to do so. See Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000). The State produced no evidence of Mr. Hartzog’s ability to pay. Mr. Hartzog testified that he had broken his arm and so could not make the full payment. He had, however, continued to make partial payments. “Evidence consisting of only the amount due is inadequate to prove an ability to pay and, hence, inadequate to prove a willful violation.” 773 So. 2d at 567.
Due to the failure of proof, Mr. Hartzog was entitled to a favorable determination on the alleged violation of his probation. Accordingly, we reverse and direct the trial court to reinstate Mr. Hartzog on probation.
Reversed and remanded.
CASANUEVA and SALCINES, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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del Valle v. State, 80 So. 3d 999 (Fla. 2011)…the ‘willfulness’ of the violation, and in order to prove ‘willfulness’ the State must provide evidence that the probationer has the ability to pay restitution but willfully refuses to do so.”) (citing Stephens, 630 So. 2d at 1090; Hartzog v. State, 816 So. 2d 774 (Fla. 2d DCA 2002)). Section 948.06(5), however, expresses with indisputable clarity the Legislature’s intent to shift the burden of proving inability to pay by clear and convincing evidence to a defendant who asserts such a claim. This burden-shif…
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Sami M. Osta v. State, 880 So. 2d 804 (Fla. 5th DCA 2004)…So. 2d 1090 (Fla.1994)(holding that before person on probation can be imprisoned for failing to make restitution, there must be determination that that person has, or has had, the ability to pay but has willfully refused to do so); Hartzog v. State, 816 So. 2d 774 (Fla. 2d DCA 2002)(holding that the State must bring forth evidence of a probationer’s ability to pay restitution to demonstrate the willfulness of the probationer’s failure to pay, which is a necessary element to prove a violation of the condition…
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Ewell v. State, 852 So. 2d 436 (Fla. 5th DCA 2003)…defendant’s ability, the failure cannot justify revocation of probation. See Lynom v. State, 816 So. 2d 1218 (Fla. 2d DCA 2002)(no willful and substantial violation where defendant cannot afford to pay for sex offender treatment); Hartzog v. State, 816 So. 2d 774 (Fla. 2d DCA 2002)(no willful and substantial violation; state failed to show defendant had ability to pay restitution); Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000)(no willful and substantial violation where balance remained but defendant m…
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
- Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000)
- Rowan v. State, 696 So. 2d 842 (Fla. 2d DCA 1997)