GEORGE BELL HEATH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Bell Heath appealed the revocation of his probation for allegedly committing armed robbery while on probation. The Florida appellate court reversed and remanded, finding that the trial court violated Heath's Fifth Amendment rights by compelling him to testify against himself at the probation revocation hearing.
The court held that Heath was not entitled to a jury trial on the issue of identity in a probation revocation proceeding, but the trial court committed reversible error by compelling Heath to testify against himself in violation of the Fifth Amendment. Accepting probation with a condition requiring truthful answers to court inquiries does not constitute a waiver of constitutional Fifth Amendment protections.
[1] A probationer is entitled to the protections of the Fifth Amendment against self-incrimination, and this right is not waived by accepting probation.
[2] A court errs in compelling a probationer to testify against himself at a probation revocation hearing.
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Join FLexlaw to unlock all legal intelligence“This was error, as it clearly violated appellant's right, under the Fifth Amendment of the United States Constitution, not to be compelled in any criminal case to be a witness against himself.”
Establishes that the trial court's compulsion of Heath to testify violated his Fifth Amendment rights despite the probation condition.
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Join FLexlaw to unlock all legal intelligenceWhile on probation, Heath was accused of committing armed robbery in Orange County, Florida on February 24, 1974, which allegedly violated his probati…
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OWEN, Chief Judge.
Appellant seeks review of an order revoking probation. We reverse.
The affidavit and warrant for violation of probation alleged a violation of the condition requiring appellant to “live and remain at liberty without violating any law”, in that, while on probation, he committed armed robbery in Orange County, Florida, on February 24, 1974. The points on appeal involve the procedure followed by the court at the hearing on this warrant for violation.
Appellant’s first point is that he was entitled to a jury trial on the issue of identity as the perpetrator of the alleged criminal act, i. e., armed robbery. There is no merit to this point. See Beasley v. State of Florida, Fourth District Court of Appeal, 310 So. 2d 37, opinion filed March 7, 1975; Singletary v. State, Fla.App.1974, 290 So. 2d 116.
Appellant’s second point is that the court erred in permitting the state to call appellant as a witness over his objection. It is apparent from the record that in overruling the appellant’s objection to this procedure, the court was relying upon one of the conditions of probation requiring the probationer to “promptly and truthfully answer all inquiries directed by the court and probation supervisor. . . .” This was error, as it clearly violated appellant’s right, under the Fifth Amendment of the United States Constitution, not to be compelled in any criminal case to be a witness against himself. Accepting probation with such condition did not constitute a waiver of the constitutional protection. Cf. State v. Gansz, Fla.App.1974, 297 So. 2d 614, holding that accepting probation does not deprive a probationer of his Fourth Amendment rights. The court reporter’s transcript of the hearing on the warrant for revocation discloses ample evidence upon which the court could have found appellant guilty of the alleged violation, absent his self-incriminating statements. Nonetheless, we feel that the error injuriously affected the substantial rights of the appellant and that he should be granted a new hearing on the alleged violation.
The order appealed is reversed and the cause remanded for further proceeding.
Reversed and remanded.
MAGER and DOWNEY, JJ„ concur.
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State v. Heath, 343 So. 2d 13 (Fla. 1977)…OVERTON, Chief Justice. This is a petition for writ of certiorari seeking review of a decision by the Fourth District Court of Appeal, reported in Heath v. State, 310 So. 2d 38 (Fla. 4th DCA 1975). Conflict is asserted with the Third District decision in Holmes v. State, 311 So. 2d 780 (Fla. 3d DCA 1975). Statements by the respective District Courts are conflicting although the factual circumstances are not identical. We f…
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Bonds v. State, 318 So. 2d 521 (Fla. 3d DCA 1975)…e issue of his identity as the perpetrator of the crime for the purpose of determining whether his parole was, in fact, violated. We find no abuse of discretion. See Singletary v. State, Fla.App.1974, 290 So. 2d 116 and Heath v. State, Fla.App.1975, 310 So. 2d 38. Affirmed.…
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Jones v. State, 321 So. 2d 574 (Fla. 2d DCA 1975)…, Fla.App.2d, 1969, 222 So. 2d 766. See United States v. Johnson, 5th Cir. 1971, 455 F. 2d 932; People v. W., 1968, 31 A.D.2d 163, 295 N.Y.S.2d 767; State v. Jackson, 1972, 16 Ariz.App. 476, 494 P. 2d 376; but cf. Heath v. State, Fla.App. 4th, 1975, 310 So. 2d 38. Affirmed. McNULTY, C. J., and HOBSON and GRIMES, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Singletary v. State, 290 So. 2d 116 (Fla. 4th DCA 1974)
- State v. Fredrick George Gansz, 297 So. 2d 614 (Fla. 4th DCA 1974)
- Beasley v. State, 310 So. 2d 37 (Fla. 4th DCA 1975)