OBIE LEE SHARP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that probation revocation based solely on hearsay is invalid, but revocation for failure to make restitution is permissible. The court also held that the sentencing statute applies to sentences imposed after its effective date.
[1] A probation revocation based solely on hearsay evidence is legally invalid.
[2] A defendant's concession to a probation violation provides a legally valid basis for revocation.
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Join FLexlaw to unlock all legal intelligenceAppellant's probation was revoked based on two alleged violations: receiving stolen property and failure to make restitution. The revocation for recei…
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OWEN, Chief Judge.
Appellant’s probation was revoked and he was thereafter sentenced to prison without credit for the period of time spent in County Jail between original incarceration and time he was placed on probation. He alleges error both in the revocation of probation as well as in the failure to allow credit for jail time served.
Appellant was alleged by affidavit to have violated probation in three separate material respects. After an evidentiary hearing the court found appellant guilty of two of the three alleged violations, one charging the unlawful receiving of certain described stolen property, and the other charging a failure to make restitution to the victim of the robbery upon which charge the probation had been entered. In support of the alleged violation for unlawfully receiving stolen property, the State’s case consisted solely of hearsay evidence and thus there was no legally valid basis upon which to revoke probation on this charge. Hampton v. State, Fla.App. 1973, 276 So. 2d 497; Franklin v. State, Fla.App.1969, 226 So. 2d 461. However, appellant conceded the correctness of the alleged violation for his failure to timely make restitution to the victim of the robbery, and thus the court did not err in revoking probation.
On the matter of the sentence, the more recent cases have been applying Section 921.161(1), F.S. after its effective date of May 29, 1973 even as to those cases where the sentencing occurred prior to the effective date.1 We conclude that where, as here, the sentencing occurred subsequent to the statute’s effective date it should be held to apply. Accordingly, the sentence for violation of probation is vacated and this cause remanded to the trial court with directions that it resentence appellant giving due credit for time served pursuant to the provisions of Section 921.-161(1), F.S.
Reversed with directions.
CROSS and DOWNEY, JJ., concur. . Gallagher v. State, Fla.App.1974, 300 So. 2d 299; Miller v. State, Fla.App.1974, 297 So. 2d 36; Joins v. State, Fla.App.1974, 287 So. 2d 742.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975)…tion program. The only evidence adduced by the State on the charge of violation of Special Condition (L) was hearsay, objected to by appellant. The rule is that probation may not be revoked solely upon hearsay evidence. Sharp v. State, Fla.App.1974, 303 So. 2d 56; White [*473] v. State, Fla.App.1974, 301 So. 2d 464. Therefore the finding as to Special Condition (L) was improper. With reference to the violation of Special Condition (K), there was no evidence that appellant was able to make the payments in qu…
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Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977)…hat Appellant acted improperly while on probation was the hearsay testimony of the prosecutor of the federal case. Probation revocation cannot be based solely on hearsay evidence. Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975); Sharp v. State, 303 So. 2d 56 (Fla. 4th DCA 1974). While the federal grand jury indictment, which was properly admitted into evidence, charged Appellant with criminal activity during a time period which included the date he was placed on probation (April 28, 1975), some compete…
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McSHAY v. State, 321 So. 2d 464 (Fla. 4th DCA 1975)…requires that on this record a presentence investigation must be considered prior to imposition of sentence, since that record does not demonstrate that appellant had ever been convicted of a prior felony.” Id. at 788-789. See also, Sharp v. State, 303 So. 2d 56 (Fla.App.4th 1974); contra, Andrews v. State, 316 So. 2d 296 (Fla.App.1st 1975). We hold that although the trial court failed to follow the requirements of Fla. Stat. § 775.11, the failure is not reversible error as Fla.Stat. § 775.11 has since been…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Franklin v. State, 226 So. 2d 461 (Fla. 2d DCA 1969)
- Winston v. State, 297 So. 2d 36 (Fla. 2d DCA 1974)
- Miller v. State, 297 So. 2d 36 (Fla. 1st DCA 1974)
- Hampton v. State, 276 So. 2d 497 (Fla. 3d DCA 1973)
- Joins v. State, 287 So. 2d 742 (Fla. 1st DCA 1974)
- Beaver v. State, 300 So. 2d 299 (Fla. 2d DCA 1974)