ANDRE JOHN HALL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Andre John Hall appeals the revocation of his probation based on an alleged possession of crack cocaine. The court found that the arresting officer gave contradictory testimony about whether he could identify the object as crack cocaine, warranting a new probation revocation hearing.
The court held that postconviction relief on the basis of newly discovered evidence should have been granted and remanded the case for a new probation revocation hearing. The officer's later testimony that he did not know what the object was directly contradicted his testimony that formed the basis for the search and probation revocation.
[1] Newly discovered evidence that directly contradicts the testimony supporting probable cause for a search warrants postconviction relief.
[2] A probation revocation hearing must be held anew when the sole witness's testimony regarding the alleged violation is impeached by later contradictory deposition testimon…
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Join FLexlaw to unlock all legal intelligence“The officer's testimony in the probation revocation proceeding that he recognized the small object to be crack cocaine was the testimony supporting probable cause to conduct the search which led to the seizure of the crack cocaine.”
Establishes that the officer's identification of the object as crack cocaine was the foundation for the entire probation revocation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHall was a passenger in a vehicle stopped for a traffic violation. The arresting officer testified at the probation revocation hearing that he saw Hal…
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[*250] PER CURIAM.
Andre John Hall appeals an order revoking his probation and an order denying his motion for postconviction relief on the basis of newly discovered evidence. We conclude that there must be a new probation revocation hearing and remand for that purpose.
At the probation revocation hearing, the arresting officer testified that he saw defendant-appellant Hall in possession of a small off-white object which appeared to the officer to be crack cocaine. The defendant was a passenger in an automobile which had been stopped for a traffic violation. The resulting search turned up crack cocaine. The trial court denied the defendant’s motion to suppress the evidence and revoked the defendant’s probation.
On the basis of this same incident, the State filed a substantive charge against the defendant for possession of cocaine. When the same officer’s deposition was taken in the substantive case, he testified that he saw the defendant holding a small object but “I don’t know what it was, though.” As we read it, this directly contradicts the testimony the officer gave during the probation revocation proceeding. The officer’s testimony in the probation revocation proceeding that he recognized the small object to be crack cocaine was the testimony supporting probable cause to conduct the search which led to the seizure of the crack cocaine.
During the pendency of the appeal on the probation revocation, we relinquished jurisdiction to allow the trial court to consider the defendant’s motion for postcon-viction relief on the basis of newly discovered evidence. The trial court denied that motion and the appeal of that order has been consolidated with the appeal of the probation revocation order. We conclude that postconviction relief should have been granted on the basis of newly discovered evidence. See Jones v. State, 709 So. 2d 512, 521 (Fla.1998); Blanco v. State, 702 So. 2d 1250, 1252 (Fla.1997); Jones v. State, 591 So. 2d 911, 915 (Fla.1991). Based on the version of events the officer testified to in the later deposition, we do not see how the defendant’s probation could have been revoked on the basis of the cocaine possession charge.
Naturally at the new hearing it may turn out that there is an explanation for the discrepancy between the officer’s testimony at the probation revocation hearing and his subsequent deposition testimony in the substantive case. We do not say that the defendant must be acquitted of the violation of probation charge, but only that, at this point, he is entitled to a new probation revocation hearing.
The State’s alternative argument is that the probation revocation should be upheld because the defendant was also found to have damaged the police car after he was taken into custody, thus amounting to criminal mischief. The problem here is that the same officer was the sole source of the evidence regarding the damage to the police car, and thus there must be a new trial on that charge as well. The State is, of course, free to bring in evidence from other sources regarding the damage to the police car, if it wishes to do so.
For the stated reasons, the orders now before us are reversed and the cause remanded for a new hearing.
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Douglas v. State, 43 So. 3d 196 (Fla. 4th DCA 2010)…So. 3d 84 (Fla. 1st DCA 2009) (holding that defendant should receive an evidentiary hearing on his postconviction claim that his wife’s recantation at trial of testimony she had given at the VOP hearing was newly discovered evidence); Hall v. State, 855 So. 2d 249 (Fla. 3d DCA 2003) (granting postcon-viction relief and reversing and remanding for a new VOP hearing where a police officer, subsequent to the VOP hearing, gave inconsistent deposition testimony which suggested that VOP was improper). Cf. Humbert v…
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Jevon Wimberly v. State, 127 So. 3d 705 (Fla. 4th DCA 2013)…as to ground three to either hold an evidentiary hearing or attach portions of the record that refute that claim. Simpson v. State, 100 So. 3d 1258, 1259 (Fla. 4th DCA 2012); Stallworth v. State, 21 So. 3d 84, 86 (Fla. 1st DCA 2009); Hall v. State, 855 So. 2d 249, 250 (Fla. 3d DCA 2003). Affirmed in Part; Reversed in Part and Remanded. DAMOORGIAN, C.J., WARNER and CIKLIN, JJ., concur.…
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Aguirre v. State, 207 So. 3d 244 (Fla. 4th DCA 2016)…mand, the trial court shall also consider appellant’s claim that trial counsel could have presented the grounds to suppress the stop at a post furlough hearing to argue that appellant’s failure to appear was not willful. See generally Hall v. State, 855 So. 2d 249 (Fla. 3d DCA 2003) (remanding for new probation revocation hearing for trial court to consider newly discovered discrepancy in significant testimony); Clemons v. State, 111 So. 2d 1169 (Fla. 4th DCA 2001) (remanding where there were no record attach…
Authorities Cited
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- Jones v. State, 709 So. 2d 512 (Fla. 1998)
- Blanco v. State, 702 So. 2d 1250 (Fla. 1997)