HERBERT WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Herbert Wilson appealed the revocation of his probation based on four alleged violations: providing a false name to law enforcement, trespass, and failure to pay supervision and court costs. The Fourth District Court of Appeal affirmed the findings regarding the criminal offenses but reversed the findings regarding the failure to pay fees, and remanded for resentencing consideration.
The court affirmed the findings regarding the criminal offenses as they were supported by sufficient evidence, including hearsay. However, the court reversed the findings regarding failure to pay supervision and court costs because the State failed to prove Wilson was able to pay these fees. The case was remanded for the trial judge to reconsider the sentencing in light of the reduced violations.
[1] Probation may be revoked upon a combination of hearsay and non-hearsay evidence.
[2] The prosecution bears the burden of proving that a probationer deliberately, willfully, and substantially violated a condition of probation.
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Join FLexlaw to unlock all legal intelligence“probation can be revoked upon a combination of hearsay and non-hearsay evidence”
Establishes the evidentiary standard for probation revocation violations based on criminal offenses
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Join FLexlaw to unlock all legal intelligenceWilson was on probation when he was charged with providing a false name to law enforcement and trespass. The State also alleged he failed to pay super…
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PER CURIAM.
The defendant appeals an order revoking his probation for committing the subsequent offenses of providing a false name to law enforcement and trespass, and for failing to pay supervision and court costs. We affirm the trial court’s findings in regard to the criminal offenses since they were amply supported by both hearsay and non-hearsay evidence. See Wilcox v. State, 770 So. 2d 733, 736 (Fla. 4th DCA 2000) (recognizing the well-established rule that probation can be revoked upon a combination of hearsay and non-hearsay evidence). However, we reverse the findings in regard to the failure to pay the supervision and court costs since there was no evidence or findings that appellant was able to pay those fees. See Shepard v. State, 939 So. 2d 311, 313 (Fla. 4th DCA 2006) (noting that the prosecution bears the burden of proving that the probationer deliberately, willfully and substantially violated a condition of probation). We reject the State’s suggestion that the findings can be sustained on the basis that appellant knew he could perform community service hours in lieu of paying the costs at issue, but failed to do so. Appellant was never charged with a violation for failing to perform community service hours.
Although the criminal offenses could independently support the judge’s revocation determination, the record provides too little guidance for us to determine if the trial judge would have imposed the same thirty-six-month incarceration sentence if faced with only the two violations rather than four. Thus, we reverse the order of revocation and, as a measure of caution, remand this case to the trial judge for issuance of a revocation order consistent with this decision and for reconsideration of defendant’s sentencing. See Mathis v. State, 683 So. 2d 634, 637 (Fla. 4th DCA 1996), receded from on other grounds by Matthews v. State, 736 So. 2d 72 (Fla. 4th DCA 1999).
Affirmed.
STONE, STEVENSON and HAZOURI, JJ., concur.
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McDOUGHALL v. State, 133 So. 3d 1097 (Fla. 4th DCA 2014)…l’s probation, but remand for the trial court to enter a revocation order based solely on the new law violation for driving with a suspended license. We likewise remand for the trial court to reconsider the defendant’s sentence. See Wilson v. State, 967 So. 2d 1107, 1108 (Fla. 4th DCA 2007) (remanding the case for the trial court to reconsider the defendant’s sentence because the record provided “too little guidance ... to determine if the trial judge would have imposed the same ... sentence if faced with only…
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Brown v. State, 12 So. 3d 877 (Fla. 4th DCA 2009)…tion and subsequent sentence because it is unclear whether the trial judge would have decided this matter in the same manner if faced with these two violations rather than the six as Brown was originally found to have committed. See Wilson v. State, 967 So. 2d 1107 (Fla. 4th DCA 2007). Reversed and remanded. GROSS, C.J., WARNER and CIKLIN, JJ., concur. . There was an additional count alleging a willful failure to pay the costs of supervision which the trial court dismissed. . The record indicates that thre…
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Archie v. State, 264 So. 3d 276 (Fla. 5th DCA 2019)…se two conditions, we are compelled to remand the case to the trial court with instructions to enter a revocation order for violations of conditions 17 and 25 and resentence Appellant for the violations of those conditions only. See Wilson v. State, 967 So. 2d 1107, 1108 (Fla. 4th DCA 2007) (remanding for reconsideration of sentencing where record provided “too little guidance” to determine whether trial judge would have imposed same sentence for two probation violations rather than four). AFFIRMED IN PART;…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Matthews v. State, 736 So. 2d 72 (Fla. 4th DCA 1999)
- Shepard v. State, 939 So. 2d 311 (Fla. 4th DCA 2006)
- Still v. Polecat Indus., Inc., 683 So. 2d 634 (Fla. 3d DCA 1996)
- M.B. v. Dep't of Child. & Fam. Servs., 770 So. 2d 733 (Fla. 4th DCA 2000)