TIMOTHY MICHAEL ROTHE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Rothe appealed an order modifying his community control after the trial court found he violated it by possessing cocaine. The court affirmed, holding that while the drug test results were inadmissible hearsay from an uncertified officer, Rothe's own admissions that he had cocaine in his system provided sufficient non-hearsay evidence to support the violation finding, allowing the hearsay test results to be used as supplementary evidence.
A court may not rely solely on hearsay evidence to find a community control violation, but hearsay may supplement competent non-hearsay evidence. Here, the court's finding was supported by Rothe's own admissions of cocaine possession, allowing the drug test results to serve as corroborating hearsay evidence.
[1] A court may not rely solely on hearsay evidence to find a violation of community control.
[2] Hearsay evidence may be used in community control violation proceedings to supplement or explain competent, non-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 court may not rely only on hearsay evidence to find a violation of community control [...] But hearsay may be used in such proceedings to supplement or explain competent, non-hearsay evidence.”
Establishes the governing rule: hearsay alone is insufficient, but can supplement non-hearsay evidence.
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Join FLexlaw to unlock all legal intelligenceRothe was subject to community control with an apparent condition prohibiting drug possession. A community control officer conducted a random urinalys…
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Timothy Michael Rothe seeks reversal of an Order of Modification of Community Control the trial court entered after finding he possessed cocaine in violation of his previously ordered community control. Rothe asserts the court based its finding solely on hearsay testimony from his community control officer that both the random urinalysis she performed and the subsequent formal laboratory test detected a level of cocaine in Rothe’s system of 605 nanograms per milliliter. We disagree and affirm because the State also presented evidence that Rothe admitted possessing cocaine.
A court may not rely only on hearsay evidence to find a violation of community control. See Melton v. State, 65 So.3d 96, 97 (Fla. 1st DCA 2011); Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997). But hearsay may be used in such proceedings to supplement or explain competent, non-hearsay evidence. See Carter v. State, — So.3d—, 2011 WL 3558153 (Fla. 1st DCA 2011). Here, the officer’s testimony about the results of the drug test she performed on Rothe is hearsay for she admitted on cross-examination that she has no specialized training, expertise or certification in drug testing. See Bray v. State, 75 So.3d 749 (Fla. 1st DCA 2011); cf. Terry v. State, 777 So.2d 1093, 1094 (Fla. 5th DCA 2001) (probation officer’s testimony about results of field drug test sufficient to support finding of violation of probation where officer possessed state certification to administer such tests). The same is true of her testimony about the results of the independent laboratory test. See Carter v. State, — So.3d -(Fla. 1st DCA 2011). But the trial court’s finding that Rothe violated community control does not rest only on this evidence.
The violation affidavit alleged Rothe “was in possession of a drug or narcotic not prescribed by a physician, to-wit: Cocaine .... ” Rothe’s community control officer testified that when she confronted Rothe with the positive urinalysis result, he acknowledged he had cocaine in his *1012system but claimed it came from handling bags of cocaine he found strewn around his yard. Rothe’s admissions constitute sufficient non-hearsay evidence of cocaine possession allowing the trial court to consider and rely on the hearsay test results. See Hayes v. State, 345 So.2d 765, 765 (Fla. 4th DCA 1977) (affirming probation revocation for heroin possession where supported by non-hearsay testimony from officers who saw offender buy “foil packets” and by hearsay testimony about field and lab test results). Of. Carter (reversing probation revocation for cocaine possession where prosecution’s only evidence was lab test results, which were hearsay, and testimony of probation officer not qualified to interpret field test results); Bray (reversing community control revocation for cocaine possession where offender denied using cocaine and only evidence of violation was hearsay testimony of community control officers regarding in-office and lab test results).
AFFIRMED.
WETHERELL, MARSTILLER and SWANSON, J.J., concur.
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Bell v. State, 179 So. 3d 349 (Fla. 5th DCA 2015)…not — as the Dawson panel stated, citing Bray — that the testimony is hearsay. Bray was also cited without question for the erroneous conclusion that a probation officer’s testimony regarding the result of a field test is hearsay in Rothe v. State, 76 So. 3d 1010 (Fla. 1st DCA 2011). Additionally, the Second District Court of Appeal positively cited Bray in support-of its ultimate conclusion “that Mr. Miller’s testimony ahout the field test results was not competent, nonhearsay evidence that Mr. Queior had u…
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State v. Queior, 191 So. 3d 388 (Fla. 2016)…indicated appellant used cocaine, and then she sent a urine sample to a laboratory which issued a report indicating the urine tested positive for cocaine” was hearsay because the officer “lack[ed] expertise in conducting the test”), Rothe v. State, 76 So. 3d 1010, 1011 (Fla. 1st 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.”), an…
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Queior v. State, 157 So. 3d 370 (Fla. 2d DCA 2015)…in a revocation proceeding, revocation may not be solely based on hearsay.” Bray v. State, 15 So. 3d 749, 750 (Fla. 1st DCA 2011). “[H]earsay may be used in such proceedings to supplement or explain competent, non-hearsay evidence.” Rothe v. State, 76 So. 3d 1010,1011 (Fla. 1st DCA 2011) (emphasis added). IV.FRAMING THE ISSUE At the revocation hearing, the State introduced three types of evidence to prove the alleged violations: (1) Mr. Miller’s account of the anonymous telephone caller’s suggestion that h…
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
- Myles Franklin Andrews v. State, 693 So. 2d 1138 (Fla. 1st DCA 1997)
- Alvarez v. State, 777 So. 2d 1093 (Fla. 2d DCA 2001)
- Bray v. State, 75 So. 3d 749 (Fla. 1st DCA 2011)
- Hayes v. State, 345 So. 2d 765 (Fla. 4th DCA 1977)
- Perrin v. SAM Kaye, Inc., 345 So. 2d 765 (Fla. 4th DCA 1977)
- Melton v. State, 65 So. 3d 96 (Fla. 1st DCA 2011)
- Osiris Chaviano v. State, 65 So. 3d 96 (Fla. 3d DCA 2011)