SHARIF SHAKHAN MIFFIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2009-05-22
No. 2D08-2550
SILBERMAN and CRENSHAW, JJ., Concur.
19 So. 3d 377 Florida District Court of Appeal, Second District (2009) Positive Treatment
Cited by 10 cases

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Holding

The court affirmed the revocation of probation based on a new law violation (grand theft motor vehicle) but remanded to strike findings based solely on hearsay.


Headnotes

[1] A probation revocation finding cannot be based solely upon hearsay testimony.

[2] A trial court abuses its discretion by finding a probation violation based solely on hearsay evidence.

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Facts & Procedural History

Sharif Miffin sought review of an order revoking his probation. The trial court found multiple violations, including grand theft motor vehicle, failur…

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Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

Sharif Miffin seeks review of an order revoking his probation in three lower court cases. Because the trial court properly found that Miffin committed the new law violation of grand theft motor vehicle, we affirm the revocation of probation and resulting sentences. However, we remand for the trial court to strike the remaining findings of violations as improperly based solely on hearsay.

A probation revocation hearing was held on May 2, 2008. The trial court found that Miffin violated his probation by failing to make a full and truthful report (Condition 1), changing residence or employment without consent (Condition 3), committing *378the new law violation of grand theft motor vehicle (Condition 8), and failing to comply with all instructions of his probation officer (Condition 10). Miffin was sentenced to 20 years in prison on each of the three cases, all sentences to run concurrently.

We review a trial court’s revocation of probation under an abuse of discretion standard. State v. Carter, 835 So.2d 259, 262 (Fla.2002). The State must prove violations of probation by the greater weight of the evidence. Dean v. State, 948 So.2d 1042, 1044 (Fla. 2d DCA 2007). While hearsay is admissible to help establish a violation, “a revocation of probation finding cannot be based solely upon hearsay testimony.” Id.

The State concedes, and the record confirms, that the violations of probation for failure to make a full and truthful report (Condition 1) and changing employment without consent (Condition 3) are based solely on hearsay. Accordingly, the State failed to meet its burden of proof as to these alleged violations and the trial court abused its discretion by finding that Miffin violated Conditions 1 and 3.

Similarly, the allegation that Miffin failed to follow his probation officer’s special instruction to report to the probation office (Condition 10) is based solely on hearsay evidence. The probation officer testified that he attempted three times to contact Miffin at his approved residence but that Miffin was not home on any of the three visits. The probation officer left a message with Miffin’s cousin that if Miffin did not report to the office he would obtain a warrant for Miffin’s arrest, and Miffin failed to report. The cousin did not testify at the probation hearing, and no evidence was presented that Miffin ever received the instruction from his probation officer. Thus, the State failed to prove a violation of Condition 10 and the trial court abused its discretion in finding a violation of that condition.

As to Condition 8, grand theft of a motor vehicle, section 812.014(1), Florida Statutes (2007), states:

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

Theft of a motor vehicle constitutes grand theft. § 812.014(2)(c).

The State presented testimony of Officers Bradshaw and Brown of the St. Pe-tersburg Police Department. Officer Bradshaw testified that Miffin was spotted driving a stolen vehicle and when Bradshaw attempted a stop of the vehicle, Mif-fin exited the car and ran. Police eventually located Miffin, and Miffin gave a statement to Officer Brown. Brown testified that Miffin acknowledged that the steering column of the vehicle was damaged and that stolen cars often have that type of damage because the ignition is pried out and the car is started with a screwdriver. Officer Brown testified that this vehicle had to be started with a screwdriver. Miffin also admitted he thought the vehicle might have been stolen.

Based on the testimony of Officers Bradshaw and Brown, the State established by the greater weight of the evidence that Miffin committed grand theft motor vehicle. Thus, we affirm the trial court’s finding that Miffin violated Condition 8 by failing to live and remain at liberty without violating the law.

*379Because the State met its burden of proof as to the new law violation of grand theft motor vehicle, we affirm the revocation of probation and resulting sentences. See Underwood v. State, 455 So.2d 1133, 1133 (Fla. 2d DCA 1984) (affirming revocation because single new law violation “was substantial enough, by itself, to warrant revocation”). However, we remand for the trial court to strike the findings that Miffin violated Conditions 1, 3, and 10.

Affirmed and remanded with directions.

SILBERMAN and CRENSHAW, JJ., Concur.


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Citator

Cited By

  • Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)
    …ley v. State, 830 So. 2d 118 (Fla. 2d DCA 2002) (reversing revocation for lack of competent evidence where only evidence that violation occurred was hearsay). Equally important, the evidence must demonstrate willfulness. See, e.g., Miffin v. State, 19 So. 3d 377, 378 (Fla. 2d DCA 2009) (holding trial court “abused its discretion” in finding violation where State presented no evidence that defendant ever received the instruction from probation officer and thus knew about the condition); Hines v. State, 789 S…
  • Green v. State, 19 So. 3d 449 (Fla. 2d DCA 2009)
    …ing officer), 5 (requiring Green to live and remain at [*450] liberty without violating the law), and 7 (prohibiting Green from using or possessing illegal drugs), and these violations were sufficient to revoke probation. See, e.g., Miffin v. State, 19 So. 3d 377 (Fla. 2d DCA 2009) (directing trial court to strike findings that defendant had violated conditions 1, 3, and 10 of probation but affirming revocation and sentences because defendant’s new law violation alone was substantial enough to warrant revoca…
  • Mathis v. State, 51 So. 3d 1250 (Fla. 2d DCA 2011)
    …minal activity. However, we conclude that the trial court abused its discretion in finding that Mathis committed a burglary and remand the ease for the trial court to strike its finding regarding the violation of condition five. See Miffin v. State, 19 So. 3d 377, 378 (Fla. 2d DCA 2009) (“We review a trial court’s revocation of probation under an abuse of discretion standard.”).1 The trial court found that Mathis violated condition five by committing the offense of burglary as a principal on June 2, 2008. “…

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