HERBERT WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court cannot revoke community control based solely on inadmissible hearsay evidence.
[1] A trial court may not base a finding of community control violation solely on inadmissible hearsay evidence.
[2] Testimony based on information supplied by other persons not called to testify or documents not entered into evidence constitutes inadmissible hearsay.
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Join FLexlaw to unlock all legal intelligenceHerbert Wilson's community control was revoked for leaving a drug treatment center without permission. The evidence presented was testimony from offic…
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STRINGER, Judge.
Herbert Wilson seeks review of the trial court’s order revoking his community control for leaving the Avon Park drug treatment center without permission before his treatment was completed. Wilson argues that the trial court erred in revoking his community control based solely on inadmissible hearsay evidence. We agree and reverse.
It is well-settled that a trial court may not base its finding that a defendant violated his community control solely on inadmissible hearsay evidence. Grimsley v. State, 830 So. 2d 118, 119-20 (Fla. 2d DCA 2002); Gammon v. State, 778 So. 2d 390, 391 (Fla. 2d DCA 2001); Clemons v. State, 388 So. 2d 639, 640 (Fla. 2d DCA 1980). In this case, the following evidence supported the trial court’s finding that Wilson violated his community control by absconding from Avon Park: (1) testimony of Wilson’s community control officer that Wilson had not completed the program at Avon Park; (2) testimony of a former community control officer that she was informed that Wilson had absconded from Avon Park; and (3) testimony of Avon Park’s records custodian that Avon Park’s records indicated that Wilson had left Avon Park against medical advice. However, none of this testimony was based on personal knowledge; the witnesses all relied on information either supplied by other persons who were not called to testify or by documents that were not entered in evidence. Accordingly, the evidence was inadmissible hearsay, see § 90.801, Fla. Stat. (2002), and the trial court erred in revoking Wilson’s community control based solely on that testimony.
We therefore reverse the order of violation of community control. We note that the State is not precluded from attempting to prove another violation based on the same circumstances on remand as long as the period of community control has not expired. See Chavous v. State, 597 So. 2d 943, 944 (Fla. 2d DCA 1992); McCarrick v. State, 553 So. 2d 1373, 1374 (Fla. 2d DCA 1989).
Reversed and remanded.
SILBERMAN and CANADY, JJ„ Concur.
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Citator
Cited By
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Sharpston v. State, 895 So. 2d 1225 (Fla. 2d DCA 2005)…); Manies v. State, 621 So. 2d 679 (Fla. 2d DCA 1993). We note that on remand, the State is not precluded from attempting to prove a violation based on the same circumstances as long as the period of supervision has not expired. See Wilson v. State, 842 So. 2d 237 (Fla. 2d DCA 2003); Our disposition renders Sharpston’s other issue on appeal moot. Reversed and remanded. CASANUEVA and KELLY, JJ., concur.…
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Keith-Schrader v. State, 891 So. 2d 1217 (Fla. 2d DCA 2005)…sed entirely on hearsay. “[H]earsay cannot form the exclusive foundation for a revocation order.” Gammon v. State, 778 So. 2d 390, 391 (Fla. 2d DCA 2001); see also Grimsley v. State, 830 So. 2d 118, 119-20 (Fla. 2d DCA 2002). As in Wilson v. State, 842 So. 2d 237, 238 (Fla. 2d DCA 2003), none of the probation officer’s testimony was based on his personal knowledge. He “relied on information either supplied by other persons who were not called to testify or by documents that were not entered in evidence.” Id.…
Authorities Cited
- Clemons v. State, 388 So. 2d 639 (Fla. 2d DCA 1980)
- Gammon v. State, 778 So. 2d 390 (Fla. 2d DCA 2001)
- Grimsley v. State, 830 So. 2d 118 (Fla. 2d DCA 2002)
- Chavous v. State, 597 So. 2d 943 (Fla. 2d DCA 1992)
- McCARRICK v. State, 553 So. 2d 1373 (Fla. 2d DCA 1989)