M.M., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probation revocation cannot be based solely on inadmissible hearsay, especially when no foundation is laid for a hearsay exception and the evidence is not formally admitted.
The defendant was adjudicated delinquent and committed for a probation violation. The evidence presented to support the violation consisted solely of …
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MAY, J.
The defendant appeals his adjudication of delinquency and commitment to a moderate risk residential program as a result of a violation of probation. He argues that the trial court erred in revoking his probation because the evidence consisted solely of inadmissable hearsay. We agree and reverse.
While hearsay is admissible in a violation of probation hearing, the revocation must be supported by evidence “which would be admissible at a criminal trial” and is actually admitted into evidence. Thomas v. State, 711 So. 2d 96, 97 (Fla. 4th DCA 1998). The orders and record in this case are insufficient to support the trial court’s adjudication and commitment for several reasons.
First, the trial court neither orally pronounced nor made written findings as to which violation the child was found guilty. Aidone v. State, 763 So. 2d 1127 (Fla. 4th DCA 1999). Second, the evidence consisted only of inadmissible hearsay. Sagner v. State, 776 So. 2d 1088 (Fla. 4th DCA 2001) (revocation of probation cannot stand on hearsay evidence alone). Third, no foundation was laid for an exception to the hearsay rule. Cf. Russell v. State, 801 So. 2d 999 (Fla. 4th DCA 2001) (affirming 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 order of commitment are reversed.
STEVENSON and GROSS, JJ., concur.
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Citator
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J.B. v. State, 84 So. 3d 401 (Fla. 4th DCA 2012)…violation, his testimony was based only on his review of appellant’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…
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M.A.L. v. State, 110 So. 3d 493 (Fla. 4th DCA 2013)…e used when combined with admissible evidence — such as evidence which is an exception to the hearsay rule — to establish the violation. Id. However, that admissible evidence must actually be admitted into evidence in the proceedings. M.M. v. State, 839 So. 2d 881, 882 (Fla. 4th DCA 2003). Here, the statement contained in the PDR, wherein the juvenile allegedly admitted that she had recently used marijuana while on probation, was never admitted into evidence either through the relevant DJJ representative or…
Authorities Cited
- Thomas v. State, 711 So. 2d 96 (Fla. 4th DCA 1998)
- Aidone v. State, 763 So. 2d 1127 (Fla. 4th DCA 1999)
- Sagner v. State, 776 So. 2d 1088 (Fla. 4th DCA 2001)
- Weire v. State, 776 So. 2d 1088 (Fla. 4th DCA 2001)
- Bertoloti v. State, 831 So. 2d 1281 (Fla. 4th DCA 2002)
- Russell v. State, 801 So. 2d 999 (Fla. 4th DCA 2001)