LEONARD BERTOLOTI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A probation revocation order cannot be based solely on hearsay evidence, even if that hearsay is admissible in revocation proceedings.
Appellant was found to have violated probation based on changing residence without approval and failing a drug program. The evidence for changing resi…
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PER CURIAM.
Appellant was found guilty of violating probation on two grounds. The state properly acknowledges that as to one, changing his residence without approval, the evidence, based solely on hearsay, was insufficient.
As to the other charge, failing to successfully complete a drug program, we also reverse. The court’s basis for finding a willful violation in Appellant’s discharge from the program was the testimony of the drug treatment program’s records custodian that Appellant’s chart showed he tested positive for alcohol. The record, upon which the custodian relied, were never introduced into evidence. It is well-settled that, although hearsay is admissible in revocation proceedings, probation may not be revoked solely on the basis of hearsay evidence. Adams v. State, 521 So. 2d 337, 337-38 (Fla. 4th DCA 1988)(reversing where defendant’s probation was revoked based solely on testimony of intake officer who relied on probation department’s records which were never admitted into evidence).
Although, here, a proper foundation was laid for introduction of the documents, the state did not move them into evidence. Without these documents, we are unable to determine whether they would have fallen within the business records exception to the hearsay rule as the state suggests. See id. at 338. As it stands, Appellant’s probation was revoked solely on the basis of hearsay.
Accordingly, the order revoking Appellant’s probation is reversed.
STONE, WARNER, and MAY, JJ„ concur.
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M.M. v. State, 839 So. 2d 881 (Fla. 4th DCA 2003)…ming the revocation of probation based on hearsay evidence that was established as a business record exception). And fourth, the state never introduced the purported business records to substantiate any of the violations alleged. Bertoloti v. State, 831 So. 2d 1281, 1282 (Fla. 4th DCA 2002) (reversing the revocation of probation where the state failed to actually move the records into evidence through the hearsay exception). Because of the deficiencies in this case, the adjudication of delinquency and the orde…
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Reddix v. State, 12 So. 3d 327 (Fla. 4th DCA 2009)…his actual Program chart into evidence through the business record exception or offer testimony directly from someone who actually witnessed the alleged Program infractions. This argument has been accepted in our own decision in Bertoloti v. State, 831 So. 2d 1281 (Fla. 4th DCA 2002), and by the First District in Stewart v. State, 926 So. 2d 413 (Fla. 1st DCA 2006). In Bertoloti, The trial court had revoked defendant’s probation because of failure to complete a drug treatment program. The only evidence of a…
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J.B. v. State, 84 So. 3d 401 (Fla. 4th DCA 2012)…llant’s file. The state was required to move these records into evidence under the business records exception to the hearsay rule to substantiate the alleged violations. See M.M. v. State, 839 So. 2d 881, 882 (Fla. 4th DCA 2003); Bertoloti v. State, 831 So. 2d 1281, 1281-82 (Fla. 4th DCA 2002). “As it stands, Appellant’s probation was revoked solely on the basis of hearsay.” Bertoloti, 831 So. 2d at 1282. Accordingly, we remand for the trial court to reconsider whether it would have imposed the same sentence…
Authorities Cited
- Adams v. State, 521 So. 2d 337 (Fla. 4th DCA 1988)