MARTHA J. KALMBACH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the revocation of probation, holding that the evidence presented was sufficient to support the trial court's finding of aggravated domestic assault.
[1] A trial court's decision to revoke probation will be affirmed if supported by evidence, even if that evidence includes hearsay, provided there is non-hearsay evidence tha…
[2] A witness's testimony on cross-examination can clarify or solidify equivocal testimony given on direct examination.
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Join FLexlaw to unlock all legal intelligenceMartha Kalmbach challenged the revocation of her probation for aggravated domestic assault. The revocation was based in part on deposition testimony f…
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COHEN, J.
Martha J. Kalmbach challenges the revocation of her probation for committing an aggravated domestic assault on her husband with a kitchen knife. We affirm.
Kalmbach contends the trial court erred in allowing the State to perpetuate the testimony of Terre Rose, Kalmbach’s mother, with her deposition. Kalmbach asserts Rose was the only person who testified from personal knowledge that she committed the aggravated domestic assault, and absent this deposition, Kalm-bach’s probation was revoked solely on hearsay evidence. The State points out that Rose testified at the revocation hearing that Kalmbach grabbed a knife and chased her husband. Kalmbach counters that Rose’s testimony was “equivocal, tenuous, and legally insufficient.”
This court need not determine whether the trial court erred in admitting the deposition testimony of Rose because it is clear that the evidence supports the trial court’s finding that Kalmbach committed an aggravated domestic assault. On direct examination, Rose somewhat equivocally testified that she was in the kitchen when she saw Kalmbach leave with a knife and stumble out into the yard with her husband. On cross-examination, she unequivocally agreed that she saw Kalm-bach grab a knife and chase her husband.
Kalmbach argues that Rose’s testimony was legally insufficient because Rose never testified that she saw Kalmbach swing the knife at her husband or verbally threaten him. This argument is unpersuasive because the non-hearsay evidence does not have to independently establish the probation violation; it need only support the hearsay evidence. See Russell v. State, 982 So. 2d 642, 646 (Fla.2008). In this case, the hearsay evidence, most notably Kalmbach’s husband’s recorded statement, indicated that Kalmbach cornered her husband in the living room while wielding a kitchen knife. Rose’s testimony supported the hearsay evidence and, therefore, the trial court did not abuse its discretion in finding Kalmbach violated her probation.
AFFIRMED.
PLEUS and EVANDER, JJ., concur.
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Mata v. State, 31 So. 3d 257 (Fla. 4th DCA 2010)…not independently establish the violation. See Russell v. State, 982 So. 2d 642, 646 (Fla.), cert. denied, — U.S. -, 129 S.Ct. 272, 172 L.Ed.2d 201 (2008). Rather, the non-hearsay evidence “need only support the hearsay evidence.” Kalmbach v. State, 988 So. 2d 1279, 1280 (Fla. 5th DCA 2008). Each of the six violations Mata was found guilty of required that the State prove he was the driver of the green Honda. Mata insists that the evidence offered by the State was insufficient to establish such fact because (…
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Maurio Boyd v. State, 1 So. 3d 1186 (Fla. 2d DCA 2009)…m of a victim’s statement, combined with non-hearsay evidence corroborating the statement, is often sufficient to support a violation of probation. See Russell, 982 So. 2d at 646; M.S. v. State, 987 So. 2d 774 (Fla. 4th DCA 2008); Kalmbach v. State, 988 So. 2d 1279 (Fla. 5th DCA 2008). In Russell, the supreme court found that under the facts of that case, nonhearsay evidence, including testimony of an observation of victim injury, was sufficient to support the victim’s hearsay statement al [*1188] leging batte…
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Crawford v. State, 240 So. 3d 894 (Fla. 5th DCA 2018)…h Crawford on the evening in question. Although the non-hearsay testimony need not independently establish a charged violation, the alleged victim's testimony fails to sufficiently support the charged violations in this case. See Kalmbach v. State, 988 So. 2d 1279, 1280 (Fla. 5th DCA 2008) (noting that "non-hearsay evidence does not have to independently establish the probation violation; it need only support the hearsay evidence" (citing Russell v. State, 982 So. 2d 642, 646 (Fla. 2008) ) ). While the trial…
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- Russell v. State, 982 So. 2d 642 (Fla. 2008)