DOMINIC CHIQUITA MELTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dominic Melton appealed the revocation of her probation based on two alleged violations: failure to report and drug possession. The Florida District Court of Appeal affirmed the revocation for failure to report but reversed the drug possession violation, finding it was based entirely on inadmissible hearsay evidence, and remanded for resentencing on the single violation.
The court affirmed the revocation for failure to report, as sufficient evidence supported that violation. However, the court reversed the revocation for drug possession, holding that the evidence was insufficient because it was based entirely on inadmissible hearsay, and the state is required to present direct, non-hearsay evidence when seeking revocation for a new offense.
[1] A probation revocation hearing requires the state to prove by the greater weight of the evidence that a probationer's actions constituted a willful and substantial violat…
[2] While hearsay is admissible in probation revocation hearings, a revocation cannot be based solely on hearsay evidence.
Previewing 2 of 5 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“a revocation of probation may not be based solely upon hearsay evidence, and where the state seeks to revoke probation based on a violation of standard condition (5) by the commission of a new offense, it is required to present direct, non-hearsay evidence linking the defendant to the commission of the offense.”
Establishes the legal standard that hearsay alone cannot support probation revocation for new offenses.
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Join FLexlaw to unlock all legal intelligenceMelton was on probation and alleged to have violated two conditions: condition (1) for failure to report and condition (5) for possession of drugs. Th…
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The appellant, Dominic Melton, appeals the revocation of her probation based on violations of condition (1) for failure to report and condition (5) for possession of drugs. We affirm the trial court’s finding that Melton violated her probation for failure to report, but we conclude that the evidence presented to the trial court was insufficient to support a violation for possession of drugs, and we remand for the trial court to strike its finding regarding that violation and enter a corrected order.
The state has the burden of proving by the greater weight of the evidence that a probationer’s actions amounted to a willful and substantial violation of a condition of probation. See Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). While hearsay is admissible at a probation revocation hearing, a revocation of probation may not be based solely upon hearsay evidence, and where the state seeks to revoke probation based on a violation of standard condition (5) by the commission of a new offense, it is required to present direct, non-hearsay evidence linking the defendant to the commission of the offense. See, e.g., Johnson v. State, 962 So.2d 394, 396-97 (Fla. 2d DCA 2007).
In this case, the state presented sufficient evidence to support the court’s finding that Melton willfully violated a condition of probation by failing to report; however, the state’s evidence was not sufficient to support revocation for a violation of condition (5) for possession of drugs which was based entirely on hearsay. The female probation officer who administered the drug test did not testify at the hearing, Melton denied smoking marijuana while on probation, and the probation officer who did appear at the hearing testified that he had no personal knowledge of the result of the drug test. Further, the state properly conceded at the revocation hearing that the hearsay evidence was insufficient to revoke Melton’s probation on that basis. Because violation of condition (5) was supported only by hearsay, the trial court abused its discretion by revoking probation on that basis.
We affirm the revocation of Melton’s probation based on violation of condition (1) for failure to report. Because it is unclear from the record, however, whether the trial court would have imposed the same sentence based solely on failure to report, we reverse and remand for the trial court to enter a corrected order strik*98ing the reference to violation of condition (5) for possession of drugs, and to resen-tence Melton only for violation of condition (1) for failure to report. See Marzendorfer v. State, 16 So.3d 957, 958 (Fla. 1st DCA 2009); Richardson v. State, 694 So.2d 147 (Fla. 1st DCA 1997).
AFFIRMED in part, REVERSED in part, and REMANDED for a corrected order consistent with this opinion.
VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.
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Rothe v. State, 76 So. 3d 1010 (Fla. 1st DCA 2011)
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Hallman v. State, 275 So. 3d 845 (Fla. 1st DCA 2019)…lant and accept the State’s concession, we reverse ∗ We have consolidated Appellant’s four appeals for purposes of this opinion. Appellant’s revocation and remand with instructions that his probation be reinstated. See Melton v. State, 65 So. 3d 96, 97 (Fla. 1st DCA 2011) (“While hearsay is admissible at a probation revocation hearing, a revocation of probation may not be based solely upon hearsay evidence, and where the state seeks to revoke probation based on a violation . . . by the commiss…
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Dalton Ray Miller v. State (Fla. 1st DCA 2021)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- VAN Wagner v. State, 677 So. 2d 314 (Fla. 1st DCA 1996)
- Sellie Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997)
- Johnson v. State, 962 So. 2d 394 (Fla. 2d DCA 2007)
- Marzendorfer v. State, 16 So. 3d 957 (Fla. 1st DCA 2009)