DONNA FAY GRIMSLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida District Court of Appeal reversed a probation revocation, holding that the State failed to prove by competent evidence that the probationer violated the condition prohibiting residence or employment changes without permission, and that the trial court improperly relied on a violation not alleged in the affidavit of violation.
The Court reversed the probation revocation because the State failed to prove by competent evidence that Grimsley violated condition three, as the only evidence was inadmissible hearsay, and because the trial court improperly relied on alleged violations of conditions eleven and twenty-three that were not charged in the affidavit of violation.
[1] A probation revocation cannot be based solely on hearsay evidence.
[2] A court may not revoke probation based on conduct not charged in the affidavit of violation.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A revocation of probation cannot be based solely on hearsay evidence, Kipp v. State, 657 So.2d 931, 932 (Fla. 2d DCA 1995), or on allegations neither admitted nor proved, Jordan v. State, 412 So.2d 970, 971 (Fla. 2d DCA 1982).”
Establishes the legal standard that probation revocation requires competent evidence, not hearsay
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDonna Grimsley's probation was revoked based on an alleged violation of condition three, which prohibited changing her residence or employment without…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Affidavit Of Violation cases and more on FLexlaw
NORTHCUTT, Judge.
The circuit court revoked Donna Grims-ley’s probation based on her violation of condition three of her supervision, that she “not change [her] residence or employment or leave the county of [her] residence without first procuring the consent of [her probation] officer.” The factual basis for the revocation was the court’s finding that Grimsley knew it was “her responsibility to report to this probation officer according to [the officer’s] testimony and that she has not reported, has not made herself available for supervision.” We reverse because the evidence did not support a violation of condition three.
Donna Ellis, Grimsley’s probation officer, filed an affidavit stating that Grimsley violated condition three by leaving the Peace River Mental Health Center on November 21, 2000, without Ellis’s permission. The affidavit also alleged that Grimsley left her approved residence in Hardee County and moved to Hillsborough County, which was shown by her arrest there on December 14, 2000. However, the only evidence the State offered to prove these allegations was either insufficient or was hearsay.
Ellis was the State’s only witness. Her testimony was, for the most part, hearsay, and defense counsel objected repeatedly on that ground. Ellis stated that someone at Grimsley’s approved residence, the Caring Ministries Program, told her that Grimsley had been committed to the Peace River Center under the Baker Act. See § 394.451, Fla. Stat. (2000). Ellis was not sure when this occurred. Obviously, this involuntary commitment would not be a willful violation of the directive that Grimsley not change her approved residence without the officer’s permission. Cf. Gibson v. State, 747 So. 2d 420, 421 (Fla. 2d DCA 1999) (commenting that seriously ill probationer’s decision to move in with her mother without notifying her officer was arguably not a willful violation of the directive that she not change her residence). Ellis had no idea when or even if Grimsley left Peace River because she never spoke to anyone at that facility. Ellis’s only testimony on this point was that someone at Caring Ministries told her that someone at Peace River said that when Grimsley left, she said she was going home. No one from Peace River testified about Grimsley’s stay there. Of course, it would have been clear that Grimsley left both her approved residence and Hardee County if the State had presented proof that she had been arrested in Hillsborough County. But it did not. The arrest was never mentioned at the probation revocation hearing.
A revocation of probation cannot be based solely on hearsay evidence, Kipp v. State, 657 So. 2d 931, 932 (Fla. 2d DCA 1995), or on allegations neither admitted nor proved, Jordan v. State, 412 So. 2d 970, 971 (Fla. 2d DCA 1982). The State failed to prove by competent evidence that Grimsley violated condition three.
Ellis did testify that Grimsley had not reported to her monthly, as required by conditions eleven and twenty-three of the probation order, and the court relied on this evidence when finding a violation. But Ellis’s affidavit did not mention the reporting requirements, nor did it allege that Grimsley had neglected to report. A court may not revoke probation based on conduct not charged in the affidavit of violation. Johnson v. State, 811 So. 2d 749, 750-51 (Fla. 2d DCA 2002); Parminter v. State, 762 So. 2d 966, 967 (Fla. 2d DCA 2000). We note that the State is free to file an appropriate affidavit and seek revocation based on violations of those conditions. Parminter, 762 So. 2d at 967.
Reversed.
DAVIS and KELLY, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)…ons based only on officer’s testimony based on review of probation records, where State’s failure to admit records into evidence rendered officer’s testimony hearsay) (citing Kipp v. State, 657 So. 2d 931, 932 (Fla. 2d DCA 1995)); Grimsley v. State, 830 So. 2d 118 (Fla. 2d DCA 2002) (reversing revocation for lack of competent evidence where only evidence that violation occurred was hearsay). Equally important, the evidence must demonstrate willfulness. See, e.g., Miffin v. State, 19 So. 3d 377, 378 (Fla. 2d…
-
Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)…509, 510 (Fla. 1st DCA 2002) (reversing the trial court’s finding that the appellant violated probation as it did not find that the violations that were alleged were proven, and as it ordered revocation on a ground never alleged); Grimsley v. State, 830 So. 2d 118, 119 (Fla. 2d DCA 2002) (noting that, while the trial court found that the appellant violated probation for failing to report to her probation officer, the officer’s affidavit neither mentioned the reporting requirements nor alleged that the appella…
-
Thompson v. State, 890 So. 2d 382 (Fla. 2d DCA 2004)…everal times, spoken with different people and the statements [were] all the same that the defendant did not comply with the rules and regulations and, therefore, [was] administratively discharged.” This testimony was hearsay. See Grimsley v. State, 830 So. 2d 118 (Fla. 2d DCA 2002); see also Clemons v. State, 388 So. 2d 639, 640 (Fla. 2d DCA 1980) (reversing when “[t]he only evidence introduced concerning appellant’s alleged violation of condition 3 ... was the hearsay testimony of the probation supervisor a…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Parminter v. State, 762 So. 2d 966 (Fla. 2d DCA 2000)
- Johnson v. State, 811 So. 2d 749 (Fla. 2d DCA 2002)
- Byfield v. Nat'l Westminister Bank PLC, 657 So. 2d 931 (Fla. 4th DCA 1995)
- Jordan v. State, 412 So. 2d 970 (Fla. 2d DCA 1982)
- Vongoff v. State, 747 So. 2d 420 (Fla. 2d DCA 1999)