BILLY DEE LEWIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Dee Lewis appealed the revocation of his drug offender probation on three grounds. The appellate court agreed that evidence was insufficient to support a burglary violation but affirmed the revocation based on the undisputed violation of moving from his approved address without permission, remanding for a corrected order.
The court affirmed the revocation based on the Condition 3 violation, rejected the neutrality challenge, and agreed that insufficient evidence supported the Condition 5 burglary violation. The court remanded for entry of a corrected revocation order striking the burglary finding.
[1] A trial court does not abandon its role as a neutral magistrate by asking clarifying questions of witnesses, provided the court does not assume the prosecution's role.
[2] Evidence of a probationer's unauthorized departure from a program, based on the testimony of the program director with personal knowledge, is sufficient to support a prob…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the evidence was not solely hearsay and it clearly showed that Lewis absconded from the PAR program in violation of his probation. The director of the program, who testified, had personal knowledge that Lewis was not at the program after a certain date.”
Establishes that the Condition 3 violation (unauthorized move) was supported by competent evidence, not hearsay.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLewis was on drug offender probation with conditions including obtaining permission before moving from his approved address (Condition 3) and not comm…
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FULMER, Judge.
Billy Dee Lewis challenges the revocation of his drug offender probation, raising three issues. Although we agree with his argument challenging the sufficiency of the evidence for the new law violation, we affirm because the revocation was supported by the evidence that Lewis moved from his approved address without permission.
Lewis first argues that the trial court departed from its role as a neutral magistrate when it questioned the State’s witnesses at the hearing. We reject this argument because the transcript shows that the trial court asked some clarifying questions of witnesses, but the court did not take over the prosecution’s role or otherwise abandon its role as a neutral magistrate through its questioning.
Lewis next asserts that the evidence was insufficient to support a violation based on Condition 3, requiring him to obtain permission before moving from his approved address, because the evidence was solely hearsay. We reject this argument because the evidence was not solely hearsay and it clearly showed that Lewis absconded from the PAR program in violation of his probation. The director of the program, who testified, had personal knowledge that Lewis was not at the program after a certain date.
Lewis finally asserts that the evidence was insufficient to support a violation based on Condition 5 by committing the new offense of burglary. We agree that the evidence was insufficient to show that Lewis committed a burglary. At most, the evidence showed that Lewis ran from the police and hid in a house that belonged to someone else. The occupants of the house (the owner’s children) would not give police permission to enter. The owner later gave the police permission to enter. There was no evidence that Lewis had entered the house surreptitiously or unlawfully or that he intended to commit any offense therein.
Although the evidence does not support the Condition 5 violation, we nonetheless affirm because the Condition 3 violation was substantial, and the record indicates that the trial court would have revoked the probation based on the Condition 3 violation alone. See Pollard v. State, 930 So. 2d 854 (Fla. 2d DCA 2006). We remand for the trial court to strike the finding concerning the violation of Condition 5 and enter a corrected revocation order. Affirmed and remanded with instructions.
SALCINES, J., and GALLEN, THOMAS M., Associate Seniqr Judge, concur.
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Citator
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Adolfo Arturo Soliz v. State, 18 So. 3d 1094 (Fla. 2d DCA 2009)…urt’s statements at the revocation [*1098] hearing reveal that the court would have revoked Soliz’s probation based on the violations of conditions 35 and 36 alone. Accordingly, we affirm the revocation of probation in this case. See Lewis v. State, 964 So. 2d 766, 767 (Fla. 2d DCA 2007). However, we remand for correction of the revocation order to eliminate the finding of a violation of conditions 10 and 26. Affirmed and remanded. NORTHCUTT, C.J., and WALLACE, J., Concur.…
Authorities Cited
- Jamarius Pollard v. State, 930 So. 2d 854 (Fla. 2d DCA 2006)