PHILLIP ANTHONY BRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Phillip Anthony Bray's community control was revoked based solely on hearsay evidence—a laboratory report and testimony from community control officers regarding a positive cocaine urinalysis. The Florida First District Court of Appeal reversed the revocation, holding that while hearsay is admissible in revocation proceedings, revocation cannot be based exclusively on hearsay evidence.
Revocation cannot be based solely on hearsay evidence. Although hearsay is admissible in revocation proceedings, the trial court erred by revoking Bray's community control based exclusively on the laboratory report and the community control officers' hearsay testimony, as neither officer testified to expertise in narcotics or drug testing.
[1] Revocation of community control may not be based solely on hearsay evidence.
[2] A laboratory report indicating a positive drug test is hearsay evidence.
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Join FLexlaw to unlock all legal intelligence“While hearsay evidence is admissible in a revocation proceeding, revocation may not be solely based on hearsay.”
Establishes the core principle that governs this case—hearsay admissibility does not equal sufficiency for revocation
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Join FLexlaw to unlock all legal intelligenceBray submitted a urine sample at his community control officer's request. An officer's preliminary test indicated cocaine use, and the sample was sent…
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Phillip Anthony Bray challenges the revocation of his community control. Because only hearsay evidence was admitted as proof of his violation of community control, we reverse the revocation order and reinstate Bray to community control supervision.
Upon the request of his community control officer, Bray submitted a urine sample. A test conducted by the officer indicated that appellant used cocaine. The urine sample was thereafter sent to an independent laboratory, which later issued a written report indicating that the urine tested positive for cocaine. An affidavit alleging a violation of the conditions of community control was thereafter filed, and the matter proceeded to a hearing. The use of cocaine was the only violation alleged.
Bray admitted that he used an over-the-counter medication for a toothache, but denied using cocaine. He objected to the admission of the laboratory report on the ground that no one knowledgeable of the procedures of the laboratory was present to testify. The trial court admitted the report over the objection of the defense. Further, although it received further argument from the defense that the testimony of two community control officers that the urinalysis conducted by them produced a *750positive result was hearsay testimony, the trial court admitted this evidence as well. Revocation was thereafter ordered on the basis of this laboratory report and the testimony of the community control officers.
While hearsay evidence is admissible in a revocation proceeding, revocation may not be solely based on hearsay. Hogan v. State, 583 So.2d 426 (Fla. 1st DCA 1991); Legree v. State, 739 So.2d 616 (Fla. 1st DCA 1999). The laboratory report was hearsay. Hogan v. State; Forbes v. State, 38 So.3d 232 (Fla. 3d DCA 2010). Moreover, the testimony of the community control officers was hearsay. While both officers testified that they had conducted hundreds of urinalyses, neither testified as to any expertise as to narcotics or drug testing. Under such circumstances, their testimony was hearsay. See L.R. v. State, 557 So.2d 121 (Fla. 3d DCA 1990), and Weaver v. State, 543 So.2d 443 (Fla. 3d DCA 1989). Had the community control officers demonstrated some expertise in the matter, their testimony may have possibly survived a hearsay challenge. See Sinclair v. State, 995 So.2d 552 (Fla. 3d DCA 2008).
The case at bar is distinguishable from Branch v. State, 837 So.2d 568 (Fla. 4th DCA 2003), as there is no indication in that case that the probationer lodged a hearsay objection to the in-office test conducted by the probation officer. Of course, hearsay which is not subject to an objection is admissible and may be as probative as other non-hearsay evidence. See Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744, 754 (Fla. 1st DCA 1991).
The State also cites Isaac v. State, 971 So.2d 908 (Fla. 3d DCA 2007), but that case too fails to support affirmance here. In Isaac, a positive drug test was not the only basis for revoking probation. The Isaac court agreed that revocation cannot be based on hearsay exclusively. Id. at 909. Moreover, there is no indication in Isaac that a hearsay objection was made regarding the testimony of the probation officer that the test conducted by the officer revealed that the probation used a controlled substance.
For the above reasons, the order revoking Bray’s community control is REVERSED.
WEBSTER and CLARK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Carter v. State, 82 So. 3d 993 (Fla. 1st DCA 2011)…ble and based on the observations of a witness with experience and training.” Id. at 444 (citing A.A. v. State, 461 So. 2d 165, 166 (Fla. 3d DCA 1984)). The present case resembles Weaver, a decision we recently cited with approval in Bray v. State, 75 So. 3d 749 (Fla. 1st DCA [*996] 2011), in reversing revocation of Bray’s community control. Although Officer Gue-dez testified that the field test yielded positive results, he did not know the name of the field test or how the test worked, and he did not testi…
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Bell v. State, 179 So. 3d 349 (Fla. 5th DCA 2015)…,] the revocation order had to be reversed.” The Dawson panel did not analyze either evidentiary issue independently, but cited a single prior panel decision from its court as the authority for each hearsay conclusion. The panel cited Bray v. State, 75 So. 3d 749 (Fla. 1st DCA 2011) for its conclusion that the probation officer’s testimony constituted hearsay. Bray does not analyze the question either, but declares the testimony to be hearsay based upon that panel’s reading of L.R. v. State, 557 So. 2d 121…
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State v. Queior, 191 So. 3d 388 (Fla. 2016)…DCA 2011) (“[T]he officer’s testimony'about the results, of the drug test she performed ... is hearsay , for she admitted. on cross-examination that she has no specialized training, expertise or certification in. (fcug testing.”), and Bray v. State, 75 So. 3d 749, 750 (Fla. 1st DCA 2011) (finding “the testimony of. the, community control officers was hearsay” because “neither testified as to any expertise as to narcotics or drug,testing”), with Car [*392] ter v. State, 82 So. 3d 993, 996 (Fla. 1st DCA 2011)…
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
- Tallahassee Furniture Co., Inc. v. Harrison, 583 So. 2d 744 (Fla. 1st DCA 1991)
- Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989)
- Hogan v. State, 583 So. 2d 426 (Fla. 1st DCA 1991)
- Sinclair v. State, 995 So. 2d 552 (Fla. 3d DCA 2008)
- Isaac v. State, 971 So. 2d 908 (Fla. 3d DCA 2007)
- Perez v. State, 557 So. 2d 121 (Fla. 3d DCA 1990)
- L.R. v. State, 557 So. 2d 121 (Fla. 3d DCA 1990)
- Legree v. State, 739 So. 2d 616 (Fla. 1st DCA 1999)
- Chonton Forbes v. State, 38 So. 3d 232 (Fla. 3d DCA 2010)
- Branch v. State, 837 So. 2d 568 (Fla. 4th DCA 2003)