STEVEN MATA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Steven Mata appeals his probation revocation based on seven alleged violations stemming from a hit-and-run accident. The court affirmed the revocation but found insufficient evidence for three counts (reckless driving, driving without a valid license, and failure to remove an obstructing vehicle), and remanded for entry of a written order specifying only the three sustainable violations.
The court affirmed the revocation of probation but found insufficient evidence for counts III (reckless driving), IV (driving without valid license), and VII (failure to remove obstructing vehicle). The revocation is sustained based on counts I (leaving the scene), II (failure to report crash), and VI (failure to provide proof of insurance). A written order of revocation specifying only these three counts must be entered on remand.
[1] A violation of probation must be proven by a preponderance of the evidence.
[2] Hearsay testimony alone is insufficient to sustain a revocation of probation, but it may be considered when supported by non-hearsay evidence.
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Join FLexlaw to unlock all legal intelligence“To sustain a violation of probation, the State must prove, by a preponderance of the evidence, that the defendant willfully and substantially violated the terms of his probation.”
Establishes the standard of proof required in probation revocation cases
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Join FLexlaw to unlock all legal intelligenceMata was involved in a hit-and-run accident on I-595 and State Road 84 in a green Honda. The vehicle caused a collision, and the driver fled on foot. …
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In this case, the State filed an Affidavit of Violation of Probation, charging that Steven Mata violated his probation as follows: committing the criminal offense of leaving the scene of an accident without giving information (count I); failure to report a crash (count II); reckless driving (count III); failing to have a valid driver’s license (count IV); driving with a suspended license (count V); failure to provide proof of insurance (count VI); and failure to remove an obstructing vehicle (count VII). At the conclusion of the VOP hearing, the trial court dismissed count V, as the State failed to present any evidence that the defendant’s license was suspended, found the defendant guilty of the remaining violations, and revoked Mata’s probation. In this appeal, Mata challenges the sufficiency of the evidence (point I), claims that the trial court abused its discretion by relying upon uncharged misconduct, i.e., the theft of a cell phone, in revoking probation (point II), and asserts the trial court erred by failing to enter a written order of revocation (point III). We affirm the revocation of Mata’s probation, writing only to address the arguments raised in points I and III.
At the VOP hearing, Janet Raether testified that she was driving westbound on 1-595 when she was struck by another vehicle. After the collision, Raether observed a black SUV on the exit ramp and a green Honda, which had apparently gone through the fence and come to rest on *259State Road 84. According to Raether, both the SUV and the Honda were damaged and in “real bad shape.” Raether spoke to the driver of the SUV, FBI Agent Patrick Brodsky; she did not see or speak with the driver of the Honda.
Paula Strong was driving on State Road 84 that evening and heard squealing tires. She pulled over and saw that a green car had come through the fence from 1-595 and was resting on State Road 84 about 100 feet behind her. The green car had body damage. A man that Strong identified as the defendant knocked on her car window and asked to use her cell phone. Strong gave the man her phone. He took the phone and fled.
FBI Agent Dustin Blount, called to investigate the accident, arrived about twenty to thirty minutes after the crash. Brod-sky reported to him that the Honda had caused the accident, that the driver of the Honda exited the car and fled west on State Road 84 on foot, and that the driver failed to stop despite his calling out “police, stop.” Agent Blount testified that Brodsky “made an identification of the defendant.” The driver of the green Honda was not on the scene and not found that evening. Agent Blount testified, however, that they found a cell phone in the car, that the phone rang on the evening of the accident, that agents answered the phone and that the caller was David Mata, the defendant’s brother. According to Blount, he later spoke with the defendant and the defendant inquired as to whether he could get his phone back. Finally, Agent Blount testified, without any objection, that agents spoke to the green Honda’s registered owner, Melissa Conroy, and that Conroy reported that the defendant’s brother had called and told her the defendant had taken the car and been in an accident.
To sustain a violation of probation, the State must prove, by a preponderance of the evidence, that the defendant willfully and substantially violated the terms of his probation. 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 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 (1) Raether, the driver who was struck, did not see the driver of the green Honda; (2) Strong identified the defendant only as the man who knocked on her car window; and (3) while Agent Blount did provide hearsay testimony that Agent Brodsky identified the defendant, he did not expressly testify that Brodsky identified the defendant as the driver of the green Honda. Addressing the latter of these arguments first, when Agent Blount’s testimony concerning Brodsky’s identification of the defendant is considered in context, it is clear that he was stating that Brodsky identified the defendant as the driver of the green Honda. The combination of Strong’s testimony and Agent Blount’s hearsay testimony that the defendant was the driver of the green Honda and fled, on foot, toward State Road 84 is sufficient to establish, by a *260preponderance of the evidence, that the defendant was, in fact, the driver of the green Honda.
Next, Mata asserts that the evidence was wholly insufficient to establish count III, charging reckless driving, as there was no evidence that he was driving with a willful and wanton disregard for the safety of persons and property; to establish count IV, driving without a valid driver’s license, as there was no evidence that he did not have a valid driver’s license; and to establish count VII, charging the failure to remove an obstructing vehicle, as there was no evidence that the green Honda was obstructing the flow of traffic. Each of Mata’s arguments is well-taken as there was no evidence that he committed these violations.
Despite our conclusion that a finding of guilt as to counts III, IV, and VII cannot be sustained, we nonetheless affirm the trial court’s decision to revoke Mata’s probation and the sentence imposed as it is clear from the record that the trial court would have revoked probation and imposed the same sentence based solely upon the remaining counts, i.e., counts I, II, and VI.1 See, e.g., Green v. State, 23 So.3d 820, 821 (Fla. 4th DCA 2009); Green v. State, 19 So.3d 449, 450 (Fla. 2d DCA 2009). As asserted by Mata in point III, remand is nonetheless required so that the trial court may enter a written order of revocation specifying the conditions violated. See, e.g., Green, 23 So.3d at 821; Watts v. State, 688 So.2d 1018 (Fla. 4th DCA 1997). The order of revocation entered on remand should specify that the revocation is predicated solely upon the three remaining charges, i.e., counts I, II, and VI.
Affirmed in part; Reversed in part; and Remanded.
WARNER and POLEN, JJ., concur.
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Harrington v. State, 238 So. 3d 294 (Fla. 4th DCA 2018)…ether there has been a willful and substantial violation of a term of probation and whether such a violation has been demonstrated by the greater weight of the evidence.” State v. Carter, 835 So. 2d 259, 262 (Fla. 2002); see also Mata v. State, 31 So. 3d 257, 259 (Fla. 4th DCA 2010) (the State must prove by a preponderance of the evidence the probationer willfully and substantially violated the terms of probation). 4 ‘“When a decision in a non-jury trial is based on findings of fact from dis…
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Cohen v. State, 171 So. 3d 179 (Fla. 3d DCA 2015)…the charged violation of making an obscene phone call under section 365.16(l)(a). McKenzie v. State, — So. 3d -, 2013 WL 5994188, 38 Fla. L. Weekly D2379 (Fla. 3d DCA Nov. 13, 2013); Ware v. State, 54 So. 3d 1074 (Fla. 1st DCA 2011); Mata v. State, 31 So. 3d 257 (Fla. 4th DCA 2010). We therefore affirm the trial court’s finding of a violation of probation by committing the crime of making obscene phone calls, and we affirm the sentence imposed. We remand this cause to the trial court for the purpose of cor…
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Boyer v. State, 39 So. 3d 374 (Fla. 1st DCA 2010)…87, 589 (Fla. 4th DCA 1996). Because it is clear from the record that the trial court would have revoked Mr. Boyer’s probation based solely upon his violation of condition four, we affirm the revocation of Mr. Boyer’s probation. See Mata v. State, 31 So. 3d 257, 260 (Fla. 4th DCA 2010) (affirming revocation of probation where record was clear that trial court would have revoked probation based solely upon the counts properly proven); Jackson v. State, 807 So. 2d 684, 685 (Fla. 2d DCA 2001). However, we rem…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Russell v. State, 982 So. 2d 642 (Fla. 2008)
- Watts v. State, 688 So. 2d 1018 (Fla. 4th DCA 1997)
- Green v. State, 23 So. 3d 820 (Fla. 4th DCA 2009)
- Limbaugh v. State, 16 So. 3d 954 (Fla. 5th DCA 2009)
- Kalmbach v. State, 988 So. 2d 1279 (Fla. 5th DCA 2008)
- Shipley Smith-Curles v. State, 24 So. 3d 702 (Fla. 1st DCA 2009)
- DeGRACIA v. State, 19 So. 3d 449 (Fla. 1st DCA 2009)
- Green v. State, 19 So. 3d 449 (Fla. 2d DCA 2009)