SHIPLEY SMITH-CURLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation where the sole evidence of residence change was hearsay testimony and the trial court found a violation not charged in the affidavit.
Probation cannot be revoked solely on hearsay evidence, and a trial court cannot revoke probation based on conduct not alleged in the violation affidavit.
[1] Probation revocation cannot rest solely on hearsay evidence, even though hearsay is admissible at revocation hearings.
[2] A trial court lacks authority to revoke probation based on violations not alleged in the probation violation affidavit.
Previewing 2 of 2 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“Although hearsay evidence is admissible at the revocation hearing, the defendant's probation or community control cannot be revoked solely on the basis of hearsay.”
Court explaining the standard for probation revocation hearings, citing Stewart v. State.
Appellant was charged with changing her residence without permission based on hearsay testimony from her probation officer. The trial court also found…
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Appellant challenges an order revoking her probation. We reverse.
The affidavit of violation of probation alleged appellant changed her residence without permission. The only evidence presented by the State that appellant changed her residence was the hearsay testimony of appellant’s probation officer. “ ‘Although hearsay evidence is admissible at the revocation hearing, the defendant’s probation or community control cannot be *703revoked solely on the basis of hearsay.’ ” Stewart v. State, 926 So.2d 413, 414 (Fla. 1st DCA 2006) (quoting Thompson v. State, 890 So.2d 382, 383 (Fla. 2d DCA 2004)). See also Gary v. State, 987 So.2d 180, 181 (Fla. 2d DCA 2008) (finding “[t]he fact that the probation officer did not find [appellant] at home when she visited did not prove that [appellant] had moved” and “the hearsay statement attributed to [appellant’s] daughter ... standing alone, was insufficient to support the revocation”).
Furthermore, the trial court’s finding that appellant violated the terms of her probation by failing to report to her probation officer cannot be affirmed as this violation was not charged in the affidavit. “A trial court is not permitted to revoke probation on conduct not charged in the affidavit.” Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003) (citing Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000)).
Therefore, the trial court’s order revoking appellant’s probation is REVERSED.
VAN NORTWICK and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mata v. State, 31 So. 3d 257 (Fla. 4th DCA 2010)…ation. See, e.g., Limbaugh v. State, 16 So. 3d 954, 955 (Fla. 5th DCA 2009). In meeting this burden, the State may rely upon hearsay testimony, but hearsay alone is insufficient to sustain a revocation of probation. See, e.g., Smith-Curles v. State, 24 So. 3d 702, 702-03 (Fla. 1st DCA 2009). The non-hearsay evidence, however, need 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…
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Ruise v. State, 43 So. 3d 885 (Fla. 1st DCA 2010)…is residence reflected in the GPS data. Hearsay is admissible in a probation or community control violation proceeding, but probation or community control may not be revoked solely on the basis of hearsay evidence. See Smith-Curles v. [*887] State, 24 So. 3d 702, 702-03 (Fla. 1st DCA 2009). Revocation may, however, be based solely upon hearsay evidence that falls within an exception to the hearsay rule. See Thomas v. State, 711 So. 2d 96, 97 (Fla. 4th DCA 1998) (noting that the question in such proceedings…
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White v. State, 170 So. 3d 144 (Fla. 1st DCA 2015)…DCA 2005); Van Wagner v. State, 677 So. 2d 314, 317 (Fla. 1st DCA 1996). Hearsay evidence is admissible at evidentiary hearings for probation revocation, but a decision to revoke probation cannot be based entirely on hearsay. Smith-Curles v. State, 24 So. 3d 702, 702-03 (Fla. 1st DCA 2009); Stewart v. State, 926 So. 2d 413, 414 (Fla. 1st DCA 2006); C.B.H. v. State, 117 So. 3d 450, 451 (Fla. 2d DCA 2013) (concluding that a probation officer’s testimony was insufficient to support probation revocation where t…
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
- Gillis Watson v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- Parminter v. State, 762 So. 2d 966 (Fla. 2d DCA 2000)
- Stewart v. State, 926 So. 2d 413 (Fla. 1st DCA 2006)
- Thompson v. State, 890 So. 2d 382 (Fla. 2d DCA 2004)
- Gary v. State, 987 So. 2d 180 (Fla. 2d DCA 2008)