JUAN FLORIAN

v.

STATE OF FLORIDA

REBULL, J.

Page 1 of 23 Juan Florian appeals an order revoking his probation and sentencing him to 30 days in jail. He argues on appeal that State failed to prove in an April 2019 probation revocation hearing that he is the same Juan Florian named in a May 2016 Judgment adjudicating him guilty of DUI and sentencing him to¹² months of probation. We affirm the revocation of his probation and his sentence.

I.

At the revocation hearing, the trial court took judicial notice without objection of the May 23, 2016 Judgment in the lower tribunal (Case Number 9077XCG). That Judgment finds and adjudges a "Juan Florian" guilty of DUI. The Judgment reflects that: (1) his address is 733 W 34th Street, Hialeah, Florida 33012; (2) his date of birth is 05/17/1953; (3) he's a white male; and (4) his Driver's License number is F465420531770. It further provides that the "defendant is placed on probation for a period of¹² months beginning 05/23/2016 under the supervision of the ADVOCATE PROGRAM.”

The Judgment also revokes Mr. Florian's driver's license for 365 days, orders a vehicle impoundment, and an ignition interlock device. Mr. Florian's signature appears on the Judgment, below the following language: "I have read and understand the above terms and conditions and I hereby acknowledge receipt of a copy of this form."

Page 2 of 23 The State presented the testimony of Officer Wilbur Gonzalez of the Hialeah Police Department. Officer Gonzalez testified regarding his arrest of Juan Florian on January 7, 2017 for driving while license suspended as a habitual traffic offender, and resisting an officer without violence. His pertinent testimony on direct examination included the following:

A I came in contact with Mr. Florian, who was parked at a green light, facing northbound, on a southbound lane. I tried to get his attention, conduct a traffic stop. He wasn't responding. He finally got my attention. I told him to stop. He looked directly at me. He slowed down and then he decided to take off.

I got behind him. I conducted a traffic stop. He continued a couple of streets down. He bailed out of his car while the car was running and took of southbound on West One Avenue and I was able to, later, take him into run after him and take him into custody.

*** Q Oh, yeah, can you is the person that you arrested in this courtroom today?

A Yes. He's -- he's standing behind Defense. I can't see. It's like a white and grey shirt. Sorry.

Q Can you point to him, please.

A Right over there.

Q Okay.

MR. BERGIDA: Yeah, Your Honor, let the record reflect that the officer has pointed to the Defendant, Mr. Juan Florian.

Page 3 of 23 (emphasis added). On cross examination, Officer Gonzalez additionally testified as follows:

Q I believe you just testified that Mr. Florian pulled up next to you.

A He pulled up towards me.

*** Q Okay.¹² So, it was your testimony today that Mr. Florian, pulled up to you; was driving. You saw him driving?

A Yes.

*** And just let me know if I'm reading this correctly. Defendant was stopped at a red light at Palm Avenue.

A Yes.

Q That's what it states; correct?

A Yeah.

Q So, Mr. Florian was not driving; was he?

A Of course, he was driving.

Q You just read that he was stopped?

A Behind the -- behind the driver's -- behind the wheel of the driver -- driver's side. He was stopped. He saw me. He pulled up towards me and he continued to drive. He was the only person in the car. *** Page⁴ of 23 Q In your arrest form, you read that he was 3 stopped at a red light; correct?

A You asked me that, yes.

Q Okay. And, when you saw Mr. Florian, you had not seen him before?

A No. (emphasis added). After hearing argument from the State and Defense, the trial court revoked Mr. Florian's probation and sentenced him to 30 days in the Dade County Jail. On appeal, the defendant argues that the State failed to "prove that the Juan Florian who was placed on probation was the same Juan Florian who was arrested by Officer Gonzalez."

II.

"The State has the burden of proving by the greater weight of the evidence that the defendant committed a willful and substantial violation of a term of probation. The trial court has broad discretion to determine whether . . . the State has met its burden of proof.” Grizzard v. State, 881 So. 2d 673, 675 (Fla. 5th DCA 2004) (emphasis added) (internal citations omitted).¹ The trial court's N 1 "The trial court has broad discretion to determine whether 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).

Page 5 of 23 findings "will not be overturned on appeal unless there is no evidence to support the decision." See Cunningham v. State, 795 So. 2d 219, 220 (Fla. 4th DCA 2001) (emphasis added). "When a cause is tried without a jury, the trial judge's findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous." Sunshine State Ins. Co. v. Davide, 117 So. 3d 1142, 1144 (Fla. 3d DCA 2013).

Here, the trial judge found as a fact that the Juan Florian before him was the same Juan Florian named in the May 2016 Judgment. Giving that finding - as we must - a presumption of correctness, it plainly is supported by competent evidence. The May 2016 Judgment identified a white male named Juan Florian who was born in May of 1953, and would therefore be 65 years of age at the revocation hearing. That Juan Florian also had an address in Hialeah, Florida.

The cold transcript of the revocation hearing does not reflect how old the Juan Florian standing before the trial judge appeared to him. Nor does the N "When a decision in a non-jury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence' because 'the trial judge is in the best position to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses. " Oertel v. State, 82 So. 3d 152, 156-57 (Fla. 4th DCA 2012) (quoting Acoustic Innovations, Inc. v. Schafer, 976 So. 2d 1139, 1143 (Fla. 4th DCA 2008)).

Harrington v. State, 238 So. 3d 294, 297 (Fla. 4th DCA 2018).

Page 6 of 23 transcript reflect whether he is white. If the presumption of correctness means anything, however, it should at least mean that we can defer to the trial judge and presume that the Juan Florian before the court was a white male² who appeared to be in the neighborhood of 65 years of age.

The evidence presented at the revocation hearing also proved that the Juan Florian before the court was driving and was arrested in Hialeah, the same municipality of the Juan Florian in the May 2016 Judgment. Moreover, the Juan Florian before the court bailed out of his car while it was still running and ran away from Officer Gonzalez.

In sum, the trial judge had before him a DUI Judgment from May of 2016 for a white male with a Hialeah address named Juan Florian who was 65 years of age, and whose driver's license was revoked. And, in light of the presumption of correctness, he had before him in court a white male named Juan Florian who (we presume) looked about 65 years old and who was arrested in Hialeah in January of 2017; and who fled from a police officer who tried to pull him over for a traffic infraction. Was it reasonable for the trial judge to infer from such flight³ that N 2 Plainly, all parties referred to the Juan Florian in court as "Mr.," indicating that he was a male.

N 3 Looney v. State, 803 So. 2d 656, 667–68 (Fla. 2001) (Evidence that on the day of the murder the defendant attempted to hit police officer and knock him down with his truck, and the subsequent pursuit and arrest was relevant to infer defendant's consciousness of guilt. Decision discusses this issue in terms of collateral crimes evidence.); Hertz v. State, 803 So. 2d 629, 644-45 (Fla. 2001) (In Page 7 of 23 maybe this Juan Florian fled because he knew his driver's license was revoked and he wasn't supposed to be driving while he was on probation for DUI?

If the presumption of correctness for findings of fact means anything, and the standards for appellate review of trial judge's decisions at probation revocation hearings mean anything, they surely must mean that the trial judge's finding in this case is supported by competent evidence, was not clearly erroneous, and was not an abuse of discretion.⁴ The test . . . is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court's right to reject 'inherently incredible and improbable testimony or evidence,' it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.

murder prosecution, no abuse of discretion to admit evidence of the defendant's flight and resistance to a lawful arrest on the day of the murders which were relevant to the defendant's consciousness of guilt.)"

Charles W. Ehrhardt, Other uses, 1 Fla. Prac., Evidence § 404.19 n.2 (2019 ed.). N⁴ See generally Williams v. State, 602 So. 2d 643, 644 (Fla. 2d DCA 1992) (finding that evidence presented at 1991 probation revocation hearing was sufficient to prove that defendant was same person placed on probation in 1978).

Page⁸ of 23 Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976) (emphasis added) (internal citations omitted).

III.

The dissent relies on Cox v. State, 816 So. 2d 160 (Fla. 2d DCA 2002) in support of the proposition that the evidence presented at the revocation hearing was insufficient as a matter of law - to prove that the Juan Florian before the trial judge was the same Juan Florian in the May 2016 DUI judgment and probation sentence. Cox is materially distinguishable from this case. Indeed, it's the reverse of this case.

In Cox, the probation officer was the only witness at the revocation hearing. The police officer who issued a citation for reckless driving to a “Jody Cox," did not testify. Thus, while there was no question as to the Jody Cox who was on probation and was before the Court for the revocation hearing, the evidentiary basis for the substantive probation violation was a Florida DHSMV printout of someone named "Jody Cox." In other words, the evidence that the Jody Cox on probation and before the court violated his probation by engaging in reckless driving was only a traffic printout reflecting someone named Jody Cox had a withhold of adjudication for a reckless driving charge.

The Cox Court held that the similarity of names and date of birth was legally insufficient to prove that the Jody Cox on probation was the same Jody Cox who Page 9 of 23 engaged in reckless driving. In arriving at its decision, the Court in Cox block quoted from Miller v. State, 573 So. 2d 405 (Fla. 2d DCA 1991). The citation to Miller highlights why Cox is distinguishable from this case. Miller stands for the narrow proposition that in proving (beyond a reasonable doubt) the offense of possession of a firearm by a convicted felon, the State must present additional "affirmative evidence" beyond identity of names, to connect the person charged to the prior conviction. As recognized in Cox and Miller, there are two lines of authority on the "name identity" issue. The Fourth District Court of Appeal described the difference as follows:

When the State must establish the existence of a prior conviction to prove an essential element of an offense, merely introducing a judgment, which shows identity between the name on the prior judgment and the name of the defendant, is insufficient. Mason v. State, 853 So. 2d 544, 545 (Fla. 1st DCA 2003). Instead, the State must present affirmative evidence that the defendant and the person named on the prior judgment are the same person. Miller v. State, 573 So. 2d 405, 406 (Fla. 2d DCA 1991). This requirement is rooted in the requirement that the State prove the defendant guilty of every element of the offense beyond a reasonable doubt. Gravatt v. United States, 260 F. 2d 498 (10th Cir.1958). In contrast, a trial court can rely on nothing but certified copies and official court records at sentencing to determine, for example, whether a defendant qualifies for an enhanced sentence. Moore v. State, 944 So. 2d 1063 (Fla. 4th DCA 2006); Slade v. State, 898 So. 2d 120 (Fla. 4th DCA 2005). As due process does not require a prior conviction to be proven beyond a reasonable doubt when it is not an element of the offense, see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Roberts v. State, 559 So. 2d 289, 291 (Fla. 2d DCA 1990), only a preponderance of the evidence standard applies. This lesser burden of proof can be satisfied by merely showing name identity. See Singh v. Holder, 379 Fed. Appx. 578 (9th Page 10 of 23 Cir.2010) (name identity without rebuttal evidence is sufficient to meet clear and convincing evidence standard of deportation proceeding).

Moncus v. State, 69 So. 3d 341, 343 (Fla. 4th DCA 2011) (emphasis added).

This case is controlled by Moncus, and not by Cox. Here, the State had to prove - by a preponderance of the evidence - that the Juan Florian before the court was the same Juan Florian named in the May 2016 judgment of conviction for DUI. Under Moncus, mere name identity was enough to prove that they were one and the same. Moreover, as we've pointed out in Section I., supra, the evidence presented at the revocation hearing in this case was more than "mere name identity" (and even more than name and date of birth identity).

For all of these reasons standing alone, the trial court's order of revocation and sentence must be affirmed.

IV.

Lest a reader of this opinion be alarmed that this is a case of "mistaken identity," and that the wrong 65 year old Juan Florian from Hialeah was found in N 5 In Moncus, the Court held that the Richard Moncus before the trial court could be impeached at trial by the introduction of copies of judgments of conviction for a "Richard Moncus." "When Moncus declined to introduce any evidence to disprove identity, the trial court was entitled to rely on the strong inference created by the similarities between Moncus's name and the names on the prior judgments and hold that the State met its burden to demonstrate name identity without introducing additional evidence." Moncus v. State, 69 So. 3d 341, 344 (Fla. 4th DCA 2011) (emphasis added).

Page 11 of 23 violation of a DUI probation that was never his to begin with, we write further to point out the abundant information in the record that this is the same person.

The record on appeal contains numerous documents leading up to the May 2016 Judgment, which identify a "Juan Florian," "Juan Florian Escaveduque,” or a "Juan Escaveduque." Not coincidentally - where applicable - all of those documents contain the same address, date of birth, driver's license number, and race and gender, as the Judgment.

The Advocate Program filed an affidavit of violation of probation in case number 9077XCG, dated January 18, 2017. The affidavit alleges, among other things, that: "On or about 1/7/2017, in Miami-Dade County, FL., defendant allegedly committed offense(s): DWLS/HABITUAL and RESISTING OFFICER WITHOUT VIOLENCE, with case number F17-365, contrary to 322.34(5) and 843.02."

As a result, and again not coincidentally, the February 3, 2017 “VIOLATION OF PROBATION ARREST WARRANT" in the record has the same⁴ items as the Judgment (Hialeah address, date of birth, DL number, race, and gender). There is a "COMPLAINT/ARREST AFFIDAVIT" in the record reflecting that the police arrested Mr. Florian in Hialeah on the probation warrant on October¹², 2018 at 6:23pm. That October¹², 2018 arrest affidavit reflects that the person the police arrested was named "Juan Florian Escaveduque." Once again, Page¹² of 23 the arrest affidavit has the same⁴ data points as the Judgment, the arrest warrant, and every other document in the record containing Juan Florian's identifying information.

Lastly, the trial court's April 11, 2019 Commitment Order and Supplemental Court Order in the record (which sentenced Mr. Florian to 30 days in jail), both contain the same date of birth, address, race, gender, and driver's license number, as all of the other documents in the record on appeal.

The transcript of the proceedings before the trial judge – before the actual probation revocation hearing began - should put to rest any remaining “mistaken identity" concerns a reader may have. Mr. Florian's lawyer told the trial judge as follows:

However, would the court - would the court like to get involved in plea negotiations. Our client is willing to plead guilty to the probation violation in return for this court unsuccessfully terminating his probation. He has completed all conditions of probation. The only issue is the withhold and one day that he took to a felony case back in 2017.

*** I believe the Advocate will say everything but the AA. However, we do have proof of the AA classes. But he did his DUI school. He did his victim impact. He did his *** I spoke with Advocate on Friday and he agreed that it was waived. All that he had left was to bring in the proof of the AA meetings.

Page 13 of 23 Mr. Florian told me that he completed it. He does not have proof since this is from 2017. However, he would be willing to, if Your Honor wanted to have him go back and complete more AA meetings, I spoke with him. He would be willing to do that to satisfy this court.

*** THE COURT: I mean, the court's not really inclined to get involved into it. I mean, have you guys discussed it; has the State and (emphasis added) While it is debatable whether defense counsel's statements would be admissible as admissions against her client, the trial court can hardly be faulted for N 6 According to Professor Ehrhardt, "a statement made by an attorney to the court may be admissible as an admission against his or her client if it is shown that the attorney had the authority to make the statement.⁴ FN 4. When statements by an attorney are admissible against the client is unclear. Rule of Judicial Administration 2.505(h) provides: "In all matters concerning the prosecution or defense of any proceeding in the court, the attorney of record shall be the agent of the client ...." It would appear that written or oral statements by a lawyer in the court concerning a lawsuit, would be admissible against the client as admissions under section 90.803(18)(c) or 90.803(18)(d). See Payton Health Care Facilities, Inc. v. Estate of Campbell, 497 So. 2d 1233, 1238 (Fla. 2d DCA 1986) (Complaint filed by defendant-Payton against defendant-Southeast shortly before trial was admissible during the trial against Payton as an admission: "We conclude that the complaint was properly admitted by the trial court as an admission against interest."); St. Paul Fire and Marine Ins. Co. v. Welsh, 501 So. 2d 54, 57 (Fla. 4th DCA 1987) (Letter written by St. Paul's consulting attorney to St. Paul was admissible under 90.803(18).). See Jensen v. Sierra Grill, Inc., 876 So. 2d 1264 (Fla. 3d DCA 2004) (discussing presumption that attorney is authorized to act on behalf of client); U.S. v. McKeon, 738 F. 2d 26, 30-33 (2d Cir. 1984) (Attorney's opening statement may be admissible against client in subsequent case.); Frank v. Bloom, 634 F. 2d 1245, 1266 (10th Cir. 1980) (factual matter in a pleading); Contractor Utility Sales Co., Inc. v. Certain-teed Products Page 14 of 23 not engaging in the legal fiction being asserted now that there was any debate whether the Juan Florian before him was the same person placed on probation.

Further, the Juan Florian before the trial judge did not coincidentally show up in court on the day when another Juan Florian was supposed to appear for revocation hearing - he was summoned to court following his arrest on a warrant, a process that requires confirmation of a person's identity, not merely the similarity of name. And though not introduced in evidence, as we already noted the arrest Corp., 638 F. 2d 1061, 1084, 74 (7th Cir. 1981) (amended or withdrawn pleading). However, other Florida cases found, without discussing whether the pleadings were admissions, that "neither a complaint nor counterclaim is admissible in evidence to prove or disprove a fact." Adams v. Merrill Lynch, Pierce, Fenner & Smith, 392 So. 2d 4, 5 (Fla. 4th DCA 1980); Sea Cabin, Inc. v. Scott, Burk, Royce & Harris, P.A., 496 So. 2d 163, 163 (Fla. 4th DCA 1986) (Appellate brief written by party's counsel in unrelated appeal is not "an admission against interest by the individual appellant ...."); Tierra Builders, Inc. v. Schwimmer, 511 So. 2d 638 (Fla. 4th DCA 1987) (dissent) (Pleadings are not admissible against party unless it is shown that party against whom they are offered supplied the information contained in them.); Douglass v. Rigg, 525 So. 2d 494, 495-96 (Fla. 4th DCA 1988) (Attorney's statement during opening statement was not sufficient evidence to support finding that client could pay increased child support.). See also State Farm Fire and Casualty Co. v. Higgins, 788 So. 2d 992, 1007 (Fla. 4th DCA 2001), decision approved on other grounds, 894 So. 2d 5 (Fla. 2004) (en banc) (Noting that while pleading may not be admissible under section 90.803(18)(c), it may be admissible under section 90.803.18(b).). However, statements of fact by attorneys during a trial are not usually binding judicial admissions. Parkerson v. Nanton, 876 So. 2d 1228, 1230 (Fla. 1st DCA 2004) (Statements made by counsel during opening statements or final argument are not binding judicial admissions on a party.). Charles W. Ehrhadt, Admissions-Authorized, 1 Fla. Prac., Evidence § 803.18c (2019 ed.) Page 15 of 23 affidavit for the violation of probation -- which was made part of the court file below and part of the record on appeal -- reflects that the Defendant arrested bore the identical date of birth and home address as the Defendant reflected on the face of the judgment. Mr. Florian is, indisputably, the right man.

By further analogy, a defendant who disputes a prior offense on a sentencing scoresheet must do more than debate the sufficiency or competency of the State's evidence - he must dispute its truth. Jennings v. State, 595 So. 2d 251 (Fla. 1st DCA 1992). See also Banks v. State, 610 So. 2d 514, 517 (Fla. 1st DCA 1992) (an objection to prior record predicated solely on hearsay does not require corroboration by the State) (citation omitted); Telfort v. State, 616 So. 2d 1222 (Fla. 3d DCA 1993) (same); Rodriguez v. State, 650 So. 2d 1111, 1112 (Fla. 2d DCA 1995) (same). The truth here - which the Defendant does not dispute – is that he is the person who was placed on probation in this case.

V.

As we detailed above, the evidence presented at the probation hearing - by itself - was enough to prove the case by the preponderance of the evidence. And it is based on that evidence alone that we affirm.

Interestingly, the dissent completely ignores the actual evidence presented at the hearing: a 65 year old white male before the trial judge named Juan Florian, Page 16 of 23 who was arrested in Hialeah by a Hialeah police officer. And, who fled from the police when that officer attempted to pull him over for a traffic infraction.

And a DUI judgment of probation identifying a white male named Juan Florian who was 65 years of age with a Hialeah address whose driver's license was revoked and who wasn't supposed to be driving. The dissent disregards all of that evidence, and certainly with no deference to the trial judge's finding of fact that they were one and the same.

It's very revealing that the dissent uses the analogy of a "mountain," to describe the State's burden. Certainly doesn't sound like the "preponderance of the evidence" burden of proof, which is the law in probation violation hearings. “A preponderance of the evidence is evidence that more likely than not tends to prove a proposition." See Hernandez v. Guerra, 230 So. 3d 514, 518 (Fla. 3d DCA 2017).7 Did the evidence presented to the trial judge in this case show that it was more likely than not that the Juan Florian before him was the same Juan Florian named in the DUI judgment? Did it tend to prove that they were the same person?

N 7 Indeed, a frequently used analogy for the preponderance of the evidence burden of proof is "tipping the scales of justice one little bit in our favor." See Blossom v. CSX Transp., Inc., 13 F. 3d 1477, 1479 (11th Cir. 1994) (emphasis added) (agreeing that this was a proper illustration of the preponderance burden of proof). "A bare preponderance is sufficient, though the scales drop but a feather's weight." In re M.L., 2010 VT 5, 25, 187 Vt. 291, 301, 993 A. 2d 400, 407 (2010) (emphasis added).

Page 17 of 23 Those questions are not for us to answer as an appellate court. But it is beyond question that there was competent evidence to support the trial judge's finding of fact answering those questions in the affirmative.

CONCLUSION

For all of these reasons, we affirm the trial court's decision to find Mr. Florian in violation of his probation, revoke his probation, and sentence him to 30 days in jail.

AFFIRMED.

WALSH, J., concurs.

TRAWICK, J., dissenting.

It is axiomatic that the State is required to prove that a defendant charged with a probation violation is the same person that was placed on probation in the underlying criminal case. Cox v. State, 816 So. 2d 160 (Fla. 2nd DCA 2002). See also Morgan v. State, 353 So. 2d 161, 162 (Fla. 2d DCA 1977) (State has burden of proving identity in any case where identity is in issue). The State attempted to meet this burden through the testimony of Officer Wilbur Gonzalez, the officer who arrested Appellant for the new offenses. Officer Gonzalez stated that he attempted to conduct a traffic stop of a car driven by Appellant. Appellant jumped out of his car while the car was running, after which he was apprehended by Gonzalez. After running the Appellant's driver's license, Gonzalez determined Page 18 of 23 that Appellant was driving with a suspended license and was a habitual traffic offender.⁸ However, the State produced no testimony that the person named in the final judgment and sentencing order was Appellant. 10 Instead, they argued that the signature of Juan Florian on that order established Appellant was the same person who committed the new substantive offenses and who was named N⁸ After a defense hearsay objection, the Court refused to admit the testimony of Officer Gonzalez regarding his verification through the “DAVID" database of Appellant's license status and history. This was error. Hearsay is admissible in a probation violation hearing to prove the alleged violation, provided that such evidence is not the sole basis for the revocation of probation. State v. Russell, 982 So. 2d 642, 646 (Fla. 2008); Bell v. State, 179 So. 3d 349 (Fla. 5th DCA 2015); Thompson v. State, 994 So. 2d 468, 471 (Fla. 3d DCA 2008). N 9 The majority references documents that would support the conclusion that the same Juan Florian named in the Judgment in the underlying case is the same Juan Florian named in the probation violation affidavit, including the complaint/arrest affidavit. The court record does not indicate that these documents were ever admitted into evidence and they cannot be used to support the decision of the trial court. N 10 The individual monitoring the progress of the Juan Florian named in the probation violation affidavit was no longer employed by the Advocate Program, the program which administered the conditions which were required as part of Florian's probation. The State failed to call any other witnesses involved in supervising Florian.

Page 19 of 23 in the probation violation affidavit. There was no evidence produced to support this argument. 11 It is not the responsibility of a court to save the State from a deficiency in their case. See Morges v. State, 33 So. 3d 115 (Fla. 1st DCA 2010) ("Circumstances that create nothing more than a strong suspicion that the defendant committed the crime are not sufficient to support a conviction."), citing Cox v. State, 555 S.2d 352, 353 (Fla. 1989). The burden is on the State to establish that the Juan Florian named in the final judgment and the Juan Florian who allegedly violated his probation and who was named in the probation violation affidavit are one in the same. Cox v. State, 816 So. 2d at 616.12 See E.P. v. State, 901 So. 2d 193 (Fla. 4th DCA 2005); Perry v. State, 778 So. 2d 1072 (Fla. 5th DCA 2001) (Probationer has no Fifth Amendment privilege to refuse to answer questions that would disclose a violation if called by the State as a witness in a probation N 11 Further complicating the issue for the State is that by failing to call any witnesses who supervised Appellant's probation, they were unable to establish that Appellant was advised that as a condition of his probation he could not commit any new criminal offenses. N¹² The majority's efforts to distinguish this case from Cox and to instead rely on Moncus v. State, 69 So. 3d 341 (Fla. 4th DCA 2011) are unavailing. While the Cox court indicated that the trial court could rely on certified copies and official court records for a sentencing, there were no such records admitted into evidence in the procedurally and substantively different probation violation hearing at issue here. In Moncus, the court stated "the State must prove by affirmative evidence that the defendant and the person named on the prior judgment are the same person" (emphasis added). I could not agree more.

Page 20 of 23 violation hearing). See also Howell v. McDonough, 2008 WL 1931321 (M.D. Fla. 2008). Further, there may have been other documents, as referenced by the majority, which may have linked the Juan Florian in the Judgment to the Juan Florian in the probation violation affidavit if those documents had been offered and admitted into evidence. Unfortunately for the State, they did none of this.

While the majority discusses in elaborate detail supposedly "abundant evidence in the record that this is the same person" and a "copious basis in the record to support the lower tribunal's order", there is no indication in the record that the trial judge considered any of the information referenced by the majority other than the Judgment and the probation violation affidavit itself. The trial court took judicial notice of both documents. However, there is nothing in the record to show that the trial judge had any document before him with the "⁴ data points" mentioned by the majority (address, date of birth, driver's license number, race and gender) and contained in the Judgment which linked Florian to the probation violation affidavit. The affidavit itself contains none of these "data points". Further, such a linkage was never argued by the State below or in this appeal.

The majority also references statements made by Appellant's counsel in concluding that Appellant conceded he was on probation, stating that these statements "should put to rest any remaining 'mistaken identity' concerns a reader may have." However, they seem to recognize a weakness in their conclusion, Page 21 of 23 indicating that it is "debatable" as to whether these statements were admissible against the Appellant. It is not debatable. Such statements are not evidence and cannot be attributed to the Appellant. Schroeder v. MTGLQ Investors, L.P., 2020 WL 698271 (Fla. 4th DCA Feb.¹², 2020) ("[U]nder Florida law, absent a stipulation, statements of counsel not made under oath are not evidence."), quoting Parkerson v. Nanton, 876 So. 2d 1228, 1230 (Fla. 1st DCA 2004).

It is disappointing that the majority has chosen to lessen the bar for the State. Prosecutors have a duty to prove their case with evidence, not with supposition. I would liken what the majority has done here with a mountain climber scaling a majestic peak. There are various stages that the climber must attain before reaching the top. However, upon reaching the final stage before the summit, the climber discovers that she has forgotten equipment necessary for the final leg of her climb. Being unprepared to go any further, she claims victory and stakes her claim that she has successfully climbed the mountain. Another climber, aware of her story, complains to the organization who recognizes each successful climb. The organization, rather than become embroiled in controversy, fails to take any action, leaving her non-meritorious climb in their record book.

Here, the State of Florida is that climber. They were close to proving their case but fell short, yet claiming victory. Our court has unfortunately recognized the State's achievement, despite being made aware by the Appellant and the record Page 22 of 23 that the State did not prove their case. The majority has instead said that the State's proof was "the truth" and dismissed the concerns raised in this dissent as "legal fiction." In other words, the evidence was close enough to affirm the decision below. Close may be good enough in horseshoes, but not in mountain climbing and certainly not in an American courtroom. Decisions such as this chip away at the bedrock that is our justice system. This may be a small chip, but chiseling away one chip after another and yet another will eventually erode and weaken our institution's foundation. The institution itself will be left tottering and unsteady until eventually confidence in its stability will be weakened beyond repair. I dissent.

Copies furnished to all parties Page 23 of 23