RICHARD ANTHONY LOWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's challenge to the sufficiency of the lab report as uncorroborated hearsay was not preserved for appellate review because no objection was made in the trial court.
[1] A defendant's failure to object to the admissibility or sufficiency of evidence at the trial court level generally waives the issue for appellate review.
[2] Hearsay evidence, standing alone, is typically insufficient to support a finding of probation violation.
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Join FLexlaw to unlock all legal intelligenceThe defendant was found guilty of violating probation for engaging in an altercation and testing positive for cocaine. The trial court relied on a lab…
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PALMER, J.
Richard Lowe (defendant) appeals his judgment and sentence which were entered by the trial court after he was found guilty of violating his probation. Finding no reversible error, we affirm.
The State charged the defendant with violating his probation by engaging in a verbal and physical altercation with his girlfriend and by testing positive for cocaine. At the VOP hearing, the victim of the physical altercation testified that the defendant punched her in the face. The trial court found a violation of the condition of defendant’s probation which required that he “live without violating any law.” The defendant does not challenge that finding on appeal.
However, the trial court also found that the defendant violated the condition of his probation which directed him not to use drugs, based upon evidence that his urine tested positive for cocaine. The defendant argues that this finding should be reversed because the lab report which was relied upon to sustain the State’s burden of proving that the defendant’s urine tested positive for cocaine was insufficient, as a matter of law, to prove a violation since the report constituted uncorroborated hearsay evidence. However, the defendant acknowledges that no objection was made in the trial court regarding the sufficiency of the evidence or the admissibility of the lab report. As the First District held when presented with the same factual situation in Headley v. State, 770 So. 2d 1244 (Fla. 1st DCA 2000):
We affirm the conviction entered by the trial court. The trial court based the conviction for violation of probation solely on hearsay testimony. Ordinarily, hearsay testimony, by itself, is legally insufficient to support such a finding. See Soto v. State, 727 So. 2d 1044, 1046 (Fla. 2d DCA 1999). However, because defense counsel failed to object to the introduction of that testimony or present any argument whatsoever to the trial court challenging the sufficiency of the hearsay testimony, the issue was not preserved for appellate review.
Id.
AFFIRMED.
SHARP, W. and GRIFFIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Yerrick v. State, 979 So. 2d 1228 (Fla. 4th DCA 2008)…l. See Lacey v. State, 831 So. 2d 1267, 1268 (Fla. 4th DCA 2002) (refusing to consider claim that alleged violation was reversible as it was predicat [*1230] ed solely upon hearsay where such argument was not advanced below); see also Lowe v. State, 901 So. 2d 422 (Fla. 5th DCA 2005); Headley v. State, 770 So. 2d 1244 (Fla. 1st DCA 2000). Counsel did, however, preserve such a claim with respect to count II, changing residence without the consent of probation officer. By the time of the violation of probation…
Authorities Cited
- Isom v. State, 727 So. 2d 1044 (Fla. 1st DCA 1999)
- Ned Poole v. State, 727 So. 2d 1044 (Fla. 1st DCA 1999)
- Headley v. State, 770 So. 2d 1244 (Fla. 1st DCA 2000)
- Al Saggese v. Dep't OF Revenue OF The State OF Fla., 770 So. 2d 1244 (Fla. 4th DCA 2000)