LOUISE BRANCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probationer's positive drug test, supported by a presumptive test and a properly admitted lab report, constitutes sufficient evidence of violating a condition prohibiting drug use.
Appellant's probation was revoked based on a positive marijuana test, which she argued was inadmissible hearsay. The trial court admitted the lab repo…
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WARNER, J.
We affirm the trial court’s order revoking appellant’s probation and sentence. The court’s order is supported by its finding that appellant violated her probation conditions by using marijuana.
Condition K(5), the condition appellant was alleged to have violated, requires appellant to “not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician.” Appellant tested positive for marijuana in her system. This is circumstantial evidence of the possession of drugs.
Appellant argues the outside testing lab report of drugs in her system was hearsay. We disagree. The lab report was admitted through the testimony of the custodian of the record, and appellant failed to preserve the specific objection that she now makes to this evidence. Regardless, the probation officer conducted an in-office “presumptive test” which showed the presence of marijuana in appellant’s system. Therefore, not only was the outside test report admissible, but it was not the only evidence of appellant’s drug use. See Monroe v. State, 679 So. 2d 50, 52 n. 2 (Fla. 1st DCA 1996).
The trial court also determined appellant committed two other violations of probation, but the affidavit supporting those violations is not in the record. The state withdrew these violations at the first hearing, and the court erred in allowing the state to reinstate them at the second hearing. Therefore, the revocation on these grounds is in error. See Meadows v. State, 747 So. 2d 1043, 1044 (Fla. 4th DCA 2000). However, these remaining violations were insubstantial and we conclude the court would have revoked appellant’s probation based solely upon her use of marijuana. We affirm the court’s order. SHAHOOD and TAYLOR, JJ., concur.
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Bray v. State, 75 So. 3d 749 (Fla. 1st DCA 2011)…community control officers demonstrated some expertise in the matter, their testimony may have possibly survived a hearsay challenge. See Sinclair v. State, 995 So. 2d 552 (Fla. 3d DCA 2008). The case at bar is distinguishable from Branch v. State, 837 So. 2d 568 (Fla. 4th DCA 2003), as there is no indication in that case that the probationer lodged a hearsay objection to the in-office test conducted by the probation officer. Of course, hearsay which is not subject to an objection is admissible and may be as…
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Trina Turner v. State, 179 So. 3d 526 (Fla. 4th DCA 2015)…Appellant willfully violated her probation. This appeal follows. As a preliminary matter,,we hold that the laboratory report was hearsay evidence because it was not admitted through the testimony of the custodian of the record. See Branch v. State, 837 So. 2d 568, 569 (Fla. 4th DCA 2003). However, because hearsay evidence is admissible at VOP hearings, the question then becomes whether the probation officer’s testimony regarding the results of the in-office drug test constitutes corroborating, non-hearsay, e…
Authorities Cited
- Monroe v. State, 679 So. 2d 50 (Fla. 1st DCA 1996)
- Moore v. State, 747 So. 2d 1043 (Fla. 4th DCA 2000)
- Meadows v. State, 747 So. 2d 1043 (Fla. 4th DCA 2000)