DAVID ALLEN GAUTHIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in revoking probation based solely on hearsay evidence of a residence change, which was contradicted by direct testimony.
[1] A violation of probation must be both willful and substantial to warrant revocation.
[2] The State bears the burden of proving a willful and substantial violation of probation by competent evidence.
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Join FLexlaw to unlock all legal intelligenceDavid Allen Gauthier appealed an order revoking his probation for changing residence without his probation officer's approval. The State relied on hea…
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PER CURIAM.
David Allen Gauthier appeals from an order revoking his probation. Mr. Gauthier contends that the trial court erred by concluding that he violated the terms of his probation by changing his residence without his probation officer’s knowledge and approval. We agree and reverse.
Our standard of review for a violation of probation determination is abuse of discretion. See Bernhardt v. State, 288 So. 2d 490, 501 (Fla.1974); Stanley v. State, 922 So. 2d 411 (Fla. 5th DCA 2006). A violation of probation must be both willful and substantial before a defendant’s probation may be revoked. See State v. Carter, 835 So. 2d 259 (Fla.2002); Robinson v. State, 907 So. 2d 1284, 1286 (Fla. 2d DCA 2005); King v. State, 817 So. 2d 935, 937 (Fla. 5th DCA 2002). The State bears the burden of proving a willful and substantial violation by competent evidence. See Stewart v. State, 926 So. 2d 413, 414 (Fla. 1st DCA 2006); Robinson, 907 So. 2d at 1286.
In this case, there was no competent, substantial evidence that Mr. Gauthi er changed his residence. At best, hearsay testimony from the probation officer showed that Mr. Gauthier spent thirteen nights at his girlfriend’s home. However, that evidence was contradicted by direct testimony from Mr. Gauthier’s landlady who testified that Mr. Gauthier rented a room from her, kept his possessions there, spent most nights there, paid rent and came by almost every day, even when he did not sleep there. Because Mr. Gauthier did not have a curfew, the hearsay testimony from the probation officer alone was insufficient to support a finding that he had changed his approved residence without permission. See Thompson v. State, 890 So. 2d 382, 383 (Fla. 2d DCA 2004) (explaining that although hearsay evidence is admissible at revocation hearing, defendant’s probation or community control cannot be revoked solely on basis of hearsay).
Accordingly, we reverse the order revoking Mr. Gauthier’s probation and remand this matter for further proceedings consistent herewith.
REVERSED AND REMANDED.
GRIFFIN, THOMPSON and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thompson v. State, 974 So. 2d 594 (Fla. 2d DCA 2008)…ng machine was not sufficient to prove that he had changed his residence. See Singleton v. State, 891 So. 2d 1226, 1227-28 (Fla. 2d DCA 2005), disapproved of on other grounds by Lawson v. State, 969 So. 2d 222 (Fla.2007); see also Gauthier v. State, 949 So. 2d 326, 327 (Fla. 5th DCA 2007) (holding that evidence showing that a probationer was absent from his residence for thirteen nights was insufficient to support a finding that the probationer had changed his residence without permission because the probatio…
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Hodges v. State, 262 So. 3d 842 (Fla. 1st DCA 2018)…d not support a finding that the probationer violated a condition of probation by changing his residence without first procuring the consent of his probation officer. Tobias v. State, 641 So. 2d 194 (Fla. 4th DCA 1994); accord Gauthier v. State, 949 So. 2d 326, 326-27 (Fla. 5th DCA 2007); Johnson v. State, 668 So. 2d 240, 241 (Fla. 1st DCA 1996). Therefore, the trial court erred in finding that Appellant violated his probation by changing his residence without his probation officer’s consent. Howeve…
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McPEEK v. State, 61 So. 3d 1267 (Fla. 1st DCA 2011)…The state did not, in short, prove that Mr. McPeek violated probation by changing his residence without first procuring the consent of the probation officer. See, e.g., Thompson v. State, 974 So. 2d 594, 599 (Fla. 2d DCA 2008); Gauthier v. State, 949 So. 2d 326, 327 (Fla. 5th DCA 2007). The lower court therefore abused its discretion in finding he violated this condition. Because the record does not clearly reveal whether the trial court would have revoked probation based on the remaining violation, we r…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- State v. Carter, 835 So. 2d 259 (Fla. 2002)
- Robinson v. State, 907 So. 2d 1284 (Fla. 2d DCA 2005)
- Stewart v. State, 926 So. 2d 413 (Fla. 1st DCA 2006)
- H.A.G. v. State, 922 So. 2d 411 (Fla. 2d DCA 2006)
- King v. State, 817 So. 2d 935 (Fla. 5th DCA 2002)
- Thompson v. State, 890 So. 2d 382 (Fla. 2d DCA 2004)