GENE E. RUTLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal affirmed the revocation of Rutland's probation but reversed the finding that he violated the condition requiring prior approval to change residences. The court held that a probation officer's hearsay testimony alone—that the defendant's mother said he had moved—was insufficient to prove a residence change violation, though the court upheld revocation based on an unchallenged violation regarding failure to report.
A probation officer's hearsay testimony by itself is insufficient to support a change of residence violation. The court affirmed the overall revocation and sentence based on the unchallenged violation regarding failure to report but reversed the finding regarding the residence change violation and remanded to strike that violation from the revocation order.
[1] Hearsay testimony by a probation officer, based solely on information received from a third party, is insufficient, by itself, to prove a probationer violated a condition…
[2] A probation revocation order will not be reversed if the trial court would have imposed the same sentence based on an unchallenged violation, even if one violation is imp…
Previewing 2 of 4 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 probation officer's hearsay testimony, by itself, that another person told him or her the probationer no longer lived at a residence is insufficient to support a change of residence violation”
Establishes the controlling legal standard that hearsay evidence alone cannot support residence change violations
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Join FLexlaw to unlock all legal intelligenceRutland's probation was revoked for violating two conditions of probation. The only evidence of a residence change violation came from the probation o…
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The trial court revoked Appellant’s probation for violation of two conditions; in particular, Condition 2: moving residences without prior approval.' The only evidence Appellant moved came when Appellant’s probation officer testified Appellant’s mother told the probation officer Appellant had moved.
But a probation officer’s hearsay testimony, by itself, that another person told him or her the probationer no longer lived at a residence is insufficient to support a change of residence violation; the cases are clear and legion. See, e.g., Smith-Curles v. State, 24 So.3d 702, 702-03 (Fla. 1st DCA 2009) (reversing revocation of probation where only evidence of residence change was hearsay testimony by probation officer); Gary v. State, 987 So.2d 180, 181 (Fla. 2d DCA 2008) (finding probation officer’s hearsay testimony, that probationer’s daughter stated probationer did not live at residence, insufficient— alone — to support change of residence violation). Nor does it matter Appellant was not home when the probation officer came to the residence; even when coupled with hearsay testimony Appellant moved. Gary, 987 So.2d at 181. Simply, the State failed its burden to support Appellant’s violation with competent evidence. See Smith-Curles, 24 So.3d at 702-03. Appellant’s violation of Condition 2 must be stricken.
But this does not end the inquiry, because the court found Appellant violated another condition of his probation; Appellant does not challenge this violation on appeal. As a result, if it is clear from the record the court would have revoked probation for the remaining violation and sentenced Appellant identically, this Court need not reverse the revocation or sentence. See Marzendorfer v. State, 16 So.3d 957, 958 (Fla. 1st DCA 2009); Gary, *879987 So.2d at 181. And here, we find the court’s overwhelming focus at the hearing was on Appellant’s failure to report to his probation officer or the probation office at all; this commanded the court’s focus and attention. Further, the court sentenced Appellant to the scoresheet minimum, despite the multiple violations. Consequently, we find the record shows the court would have revoked Appellant’s probation and sentenced Appellant identically upon the single violation.
The court’s revocation of Appellant’s probation is therefore affirmed, as is Appellant’s 11.85 year sentence. But we remand to the trial court to strike the Condition 2 violation from its revocation order.
REVERSED in part, AFFIRMED in part, and REMANDED.
THOMAS, CLARK, and WETHERELL, JJ., concur.
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Hodges v. State, 262 So. 3d 842 (Fla. 1st DCA 2018)
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Hand v. State (Fla. 1st DCA 2024)…ation of condition 3 cannot stand because it was based solely on Appellant’s absence from the home when the probation officer visited, coupled with hearsay that he was no longer living there. We accept that concession of error. See Rutland v. State, 166 So. 3d 878, 878 (Fla. 1st DCA 2015) (holding “a probation officer’s hearsay testimony, by itself, that another person told him or her the probationer no longer lived at the residence is insufficient to support a change of residence violation,” even coupled wit…
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Kristopher M. Marcus v. State (Fla. 2d DCA 2022)…9, 941 (Fla. 4th DCA 2008). Thus, "a probation officer's hearsay testimony, by itself, that another person told him or her the probationer no longer lived at a residence is insufficient to support a change of residence violation." Rutland v. State, 166 So. 3d 878, 878 (Fla. 1st DCA 2015). Even where such hearsay testimony is coupled with a one-time observation that the probationer was not at the residence when the probation officer visited, the evidence is insufficient to prove that the probationer moved.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Marzendorfer v. State, 16 So. 3d 957 (Fla. 1st DCA 2009)
- Gary v. State, 987 So. 2d 180 (Fla. 2d DCA 2008)
- Shipley Smith-Curles v. State, 24 So. 3d 702 (Fla. 1st DCA 2009)