MICHAEL ANTONIO DEJESUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2003-07-11
No. 2D02-4155
CASANUEVA and CANADY, JJ., concur.
848 So. 2d 1276 Florida District Court of Appeal, Second District (2003) Caution
Cited by 14 cases

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Synopsis

Michael DeJesus appealed the revocation of his drug offender probation, challenging the procedure used by the trial court. The Florida Second District Court of Appeal reversed the revocation, finding that the trial court violated DeJesus's due process rights by failing to file an affidavit of violation and relying on insufficient evidence of a probation violation.


Holding

DeJesus's probation revocation was reversed because: (1) no affidavit of violation of probation was filed, which violates due process; and (2) the only evidence presented was hearsay regarding an unidentified foreign substance, which is insufficient to prove a probation violation since a foreign substance is not necessarily illegal.


Headnotes

[1] Revocation of probation on grounds never alleged in writing violates due process and is fundamental error.

[2] Hearsay alone may not support the revocation of probation.

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Key Quotes

“Revocation of probation on grounds never alleged in writing violates due process and is fundamental error.”

Establishes the core violation—the absence of a written affidavit of violation

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Facts & Procedural History

DeJesus was placed on drug offender probation after pleading no contest to violating probation and sale of cocaine, receiving a suspended 48-month sen…

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Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

Michael Antonio DeJesus challenges the revocation of his drug offender probation. We reverse because Dejesus’s probation was revoked in violation of his rights to due process.

DeJesus was originally placed on probation after pleading no contest to fraudulent use of a credit card and grand theft. His probation was revoked for a second time after he pleaded no contest to violating probation and to sale of cocaine. The trial court sentenced DeJesus to concurrent terms of forty-eight months in prison but suspended that sentence and required De-Jesus to complete two years of drug offender probation.

Subsequently, a revocation of probation hearing was held, although no affidavit of violation of probation was ever filed. According to the transcript of the hearing, DeJesus was represented by an assistant public defender and the State was represented by an assistant state attorney. However, only the trial court judge and DeJesus spoke at the hearing. The judge stated that three screens of Dejesus’s urine showed the presence of pink crystals, although the lab could not say what they were, just that they were a foreign substance. He also stated that another drug screen was questionable and that the temperature of one of the urine samples was too low to allow a screening.

The judge asked DeJesus if there was anything he wanted to say. DeJesus responded that if he were to say that he had gotten high, he would be lying. He asked that the court take a blood or hair sample and said that his family was willing to give everything it had to facilitate such testing. The judge stated that the drug screens spoke for themselves and imposed the suspended sentences of forty-eight months.

In this appeal, DeJesus argues that the trial court violated his constitutional right to due process through the procedure it employed to revoke his probation. Specifically, he notes the absence of an affidavit of violation of probation and the absence of substantive evidence that the foreign substance found in his urine was an illegal substance. The State responds that DeJe-sus, while represented by counsel, signed a contract (the order of drug offender probation) waiving his right to a revocation hearing. DeJesus admits that he signed the order of probation but asserts that it does not state that he agreed to waive his right to a hearing.

As DeJesus asserts, the order of drug offender probation says nothing about the probationer waiving his right to an adversarial hearing. Athough one may waive any right one has under a constitution, statute, or contract, that waiver must be knowing, intelligent, and voluntary. A.D.W. v. State, 111 So. 2d 1101 (Fla. 2d DCA 2001). We have grave doubts that a probationer can make a knowing and intelligent waiver of his right to an adversarial hearing to determine whether he violated probation before the alleged violation has even occurred, i.e., before he even knows the factual basis of the alleged violation. However, because Dejesus’s order of probation does not contain such a waiver, we need not address that issue.

We reverse the order revoking Dejesus’s probation for two reasons. First, the record does not contain an affidavit of violation of probation.1 “Revocation of probation on grounds never alleged in writing violates due process and is fundamental error.” Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999). Second, the only evidence that DeJesus violated his probation was the hearsay statement of the trial court judge that the lab reported the presence of a foreign substance in Dejesus’s urine. In addition to the fact that hearsay alone may not support the revocation of probation, Andrews v. State, 693 So. 2d 1138 (Fla. 1st DCA 1997), a foreign substance is not necessarily an illegal substance. Thus, there was no substantive evidence of a violation of probation.

Accordingly, we reverse the order of revocation of Dejesus’s probation and remand with directions consistent with this opinion.

CASANUEVA and CANADY, JJ., concur. . As a result of the absence of an affidavit of violation of probation, the order of revocation does not state what condition of probation DeJesus was found to have violated. This is an additional reversible error. See Blair v. State, 636 So. 2d 784, 785 (Fla. 1st DCA 1994).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • McRAE v. State, 88 So. 3d 384 (Fla. 2d DCA 2012)
    …ersible, fundamental error. See Johnson, 811 So. 2d at 750. The State also notes that the trial court committed reversible error by failing to specify what condition McRae violated in its order revoking probation, and we agree. See DeJesus v. State, 848 So. 2d 1276, 1278 n. 1 (Fla. 2d DCA 2003). [*386] Because the trial court erred, we reverse the order of revocation. However, we reverse without prejudice to the State proceeding on the original affidavit or filing an appropriate affidavit. See Johnson, 811 So.…
  • Dean v. State, 948 So. 2d 1042 (Fla. 2d DCA 2007)
    …ourt may consider it in making this determination; however, a revocation of probation finding cannot be sustained based solely upon hearsay testimony. See, e.g., Robinson v. State, 744 So. 2d 1188, 1189 (Fla. 2d DCA 1999); see also DeJesus v. State, 848 So. 2d 1276, 1278 (Fla. 2d DCA 2003). Here, because no business records were introduced, the State’s proof consisted solely of testimony from two wit [*1045] nesses — Ms. Upshaw and Ms. Lugo. Neither of these witnesses had any personal knowledge of any of the f…
  • Sampson v. State, 903 So. 2d 1055 (Fla. 2d DCA 2005)
    …). Sampson does not argue that he failed to receive a copy of the affidavit before the hearing, nor does he argue that his community control was revoked based upon alleged violations that were not included in the affidavit. Compare DeJesus v. State, 848 So. 2d 1276 (Fla. 2d DCA 2003) (holding that revocation of probation on grounds never alleged in writing violates due process and is fundamental error). Rather, he admitted to this court that the affidavit existed and that he was aware of its contents. Thus, we…

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