BRIAN GADDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian Gaddy appeals the revocation of his probation, challenging the trial court's reliance on hearsay evidence to support findings of new law violations. Although the court agrees that hearsay was improperly used as the sole basis for one ground of revocation, it affirms the revocation because two other probation violations were supported by competent, substantial evidence.
The court held that while hearsay may not be the sole basis for establishing a probation violation, the trial court properly revoked probation because violations of conditions two (failing to report) and four (moving without permission) were established by competent, substantial evidence and alone justify revocation. The hearsay-based findings regarding condition five must be struck.
[1] Hearsay testimony may be considered at a violation of probation hearing, but it cannot be the sole basis for revoking probation.
[2] A probation revocation may be affirmed if competent, substantial evidence supports at least one ground for revocation, even if other grounds are not adequately proven.
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Join FLexlaw to unlock all legal intelligence“But, hearsay may not be the sole basis supporting a ground for revocation.”
Establishes the legal rule that while hearsay is permissible at probation revocation hearings, it cannot be the exclusive evidentiary support for a violation.
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Join FLexlaw to unlock all legal intelligenceGaddy was placed on two years' probation in September 2008 for fleeing or eluding a law enforcement officer. In December 2008, he moved from his appro…
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Brian Gaddy appeals the trial court’s order revoking his probation. The trial court found that Mr. Gaddy violated three probation conditions: failing to report to his probation officer (condition two), moving from his approved residence without permission (condition four), and committing four new law violations (condition five). Mr. Gaddy argues that only hearsay testimony established the alleged violations of condition five. He seeks a new revocation hearing to determine if the trial court would revoke probation solely on the remaining two grounds. The State concedes error as to the evidence supporting the new law violations. However, the State contends, and we agree, that competent, substantial evidence otherwise supports the probation revocation. It is only necessary to remand to correct the trial court’s order.
The trial court placed Mr. Gaddy on two years’ probation in September 2008, for *1259fleeing or attempting to elude a law enforcement officer in a vehicle driven at high speed or with wanton disregard for persons or property, a second-degree felony. See § 316.1935(3)(a), Fla. Stat. (2007). In December 2008, Mr. Gaddy moved from his approved residence without prior permission. The Department of Corrections did not know his whereabouts and, thus, classified him as an absconder. Mr. Gad-dy also failed to report to his probation officer. An affidavit of violation was filed alleging these violations of conditions two and four.
Subsequently-filed affidavits alleged that Mr. Gaddy committed four new law violations, in violation of condition five. At the revocation hearing, the State presented only hearsay evidence to support these violations. A trial court may consider hearsay testimony at a violation of probation hearing. See Robinson v. State, 744 So.2d 1188, 1189 (Fla. 2d DCA 1999). But, hearsay may not be the sole basis supporting a ground for revocation. Id. at 1189 n. 1 (citing Kipp v. State, 657 So.2d 931, 932 (Fla. 2d DCA 1995)); Franklin v. State, 226 So.2d 461, 462 (Fla. 2d DCA 1969) (explaining that the introduction of hearsay in a revocation hearing is not error per se, so long as there is other proper and legally admissible evidence upon which the trial court can base its decision to revoke probation on a specific ground). The State failed to prove by competent, substantial evidence that Mr. Gaddy violated condition five.
Nevertheless, the State established violations of conditions two and four by competent, substantial evidence. Standing alone, these violations justify revocation of probation. See Franklin, 226 So.2d at 462; Robinson v. State, 773 So.2d 566, 567-68 (Fla. 2d DCA 2000) (striking three grounds for revocation of probation but affirming revocation where defendant violated condition requiring him to file monthly reports); Green v. State, 19 So.3d 449 (Fla. 2d DCA 2009) (holding that revocation of probation and sentence need not be reconsidered where one condition was not established but where competent, substantial evidence supported the trial court’s findings of violations of other conditions). We are convinced beyond a reasonable doubt that the trial court would have revoked probation on these two grounds alone.
Accordingly, we affirm the revocation of Mr. Gaddy’s probation and the three-year prison sentence imposed. We remand for the trial court to strike the findings of violations of condition five and to enter a corrected revocation order reflecting violations of conditions two and four. Mr. Gad-dy need not be present for the correction of the revocation order.
ALTENBERND and WHATLEY, JJ„ Concur.
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Citator
Cited By
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Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)…was insufficient); Cerny, 65 So. 3d at 613 (holding that “the circuit court erred in revoking Mr. Cerny’s probation based on that alleged new law violation” where no evidence supported trial court’s finding that a battery occurred); Gaddy v. State, 23 So. 3d 1258, 1259 (Fla. 2d DCA 2009) (holding that the evidence that the defendant violated a probation condition was not competent and substantial because the State presented only hearsay evidence); Warren v. State, 924 So. 2d 979, 981 (Fla. 2d DCA 2006) (hold…
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Cerny v. State, 65 So. 3d 609 (Fla. 2d DCA 2011)…re this court to determine whether there was competent, substantial evidence presented at the evidentiary-hearing on the violation — including the hearsay evidence that is admissible in such a context — to authorize a revocation. See Gaddy v. State, 23 So. 3d 1258, 1259 (Fla. 2d DCA 2009) (holding that the State, which presented only hearsay evidence, failed to prove by competent, substantial evidence that the defendant violated a condition of his probation). Unfortunately, the State failed to present a prima…
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Whittaker v. State, 46 So. 3d 650 (Fla. 2d DCA 2010)…ences. The State proved new law violations in five new cases by a preponderance of the evidence, and because those new law violations were sufficient to justify the revocation of probation, we affirm the order revoking probation. See Gaddy v. State, 23 So. 3d 1258, 1259 (Fla. 2d DCA 2009); Green v. State, 19 So. 3d 449, 449-50 (Fla. 2d DCA 2009). However, we remand with directions for the trial court to strike the findings of new law violations in two new cases that we conclude were not supported by the State…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Franklin v. State, 226 So. 2d 461 (Fla. 2d DCA 1969)
- Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000)
- Byfield v. Nat'l Westminister Bank PLC, 657 So. 2d 931 (Fla. 4th DCA 1995)
- Robinson v. State, 744 So. 2d 1188 (Fla. 2d DCA 1999)
- DeGRACIA v. State, 19 So. 3d 449 (Fla. 1st DCA 2009)
- Green v. State, 19 So. 3d 449 (Fla. 2d DCA 2009)