STEPHEN BRUCE ACKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a judge who did not preside over a probation violation hearing cannot enter a revocation order without having heard the testimony and evaluated witness credibility.
Stephen Acker's probation was revoked based on conflicting testimony. The written revocation order was later signed by a different judge who did not h…
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COVINGTON, Judge.
On this appeal, Stephen Acker challenges a judgment and sentence imposed after the revocation of his probation. Acker raises several issues on appeal. However, because we find merit in only one of the issues raised, we need not address the remaining issues.
Acker was charged with one count of failure of a sex offender to report his status as required by section 943.0435, Florida Statutes (1999). He was adjudicated guilty and placed on probation for thirty-six months. An affidavit of violation of probation was filed on January 19, 2001, and a hearing was held on February 6, 2001. During the hearing, Acker’s testimony conflicted with his probation officer’s testimony. The trial court apparently found the probation officer’s testimony credible. Thus, the trial court orally revoked Acker’s probation, based upon a willful and substantial violation.
A written order revoking Acker’s probation was not rendered until November 8, 2001. Significantly, this order was not signed by the judge who presided over the violation of probation hearing. Thus, the judge who signed the revocation order did not hear and evaluate the conflicting testimony upon which the aforementioned credibility determination was based. The record does not indicate why a successor judge entered the order. A trial judge is charged with evaluating the credibility of witnesses. Gammon v. State, 778 So. 2d 390, 392 (Fla. 2d DCA 2001); see also Davis v. State, 796 So. 2d 1222, 1226 (Fla. 4th DCA 2001). However, in this case, the judge who entered the revocation order did not hear the testimony of the witnesses nor could she evaluate their credibility. This was improper. See Campbell v. State, 622 So. 2d 603, 603 (Fla. 2d DCA 1993).
We therefore reverse and remand this case for the judge who presided over the violation of probation hearing to enter an appropriate written order. BLUE, C.J., and DAVIS, J., Concur.
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Nowlin v. Nationstar Mortg., LLC, 193 So. 3d 1043 (Fla. 2d DCA 2016)…not enter an order or judgment based upon evidence heard by the predecessor judge.” Hartney v. Piedmont Tech., Inc., 814 So. 2d 1217, 1218 (Fla. 1st DCA 2002) (quoting Carr v. Byers, 578 So. 2d 347, 348 (Fla. 1st DCA 1991)); see also Acker v. State, 823 So. 2d 875, 876 (Fla. 2d DCA 2002) (reversing probation order where judge who signed the order did not hear the testimony of the witnesses nor could she evaluate their credibility). IV. CONCLUSION We reverse the final judgment of foreclosure and remand with…
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Williams v. Fla. Parole Comm'n, 977 So. 2d 783 (Fla. 1st DCA 2008)…il the matter was remanded to the Commission and the administrator listened to the tape-recording of the hearing. Generally, a successor fact-finder may not rule on matters based on the credibility of witnesses that he has not heard. Acker v. State, 823 So. 2d 875, 876 (Fla. 2d DCA 2002) (holding that a successor judge who did not hear the witnesses or rule on their credibility could not sign a written order revoking probation); see also Fratello v. State, 950 So. 2d 440, 441 (Fla. 4th DCA) (reversing order d…
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Fratello v. State, 950 So. 2d 440 (Fla. 4th DCA 2007)…ssistant, and a private investigator for the defense. Ordinarily, a trial judge is not permitted to rule on a matter based on the credibility of witnesses which the judge has not heard, absent a stipulation of the parties. See, e.g., Acker v. State, 823 So. 2d 875 (Fla. 2d DCA 2002) (holding that successor judge who did not hear witness testimony or rule on credibility could not sign written order revoking probation); Hartney v. Piedmont Tech., Inc., 814 So. 2d 1217 (Fla. 1st DCA 2002) (holding that successor…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gammon v. State, 778 So. 2d 390 (Fla. 2d DCA 2001)
- Campbell v. State, 622 So. 2d 603 (Fla. 2d DCA 1993)
- Davis v. State, 796 So. 2d 1222 (Fla. 4th DCA 2001)