THOMAS L. BROWN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Second District Court of Appeal reversed a probation revocation order, holding that revocation cannot be based solely on hearsay evidence of an arrest. The court found that the probation supervisor's unsubstantiated testimony about an alleged burglary arrest was insufficient to support revocation, and that even an arrest alone cannot establish a violation of the 'living honorably' condition without proof of actual wrongdoing.
The court held that revocation of probation cannot be based solely on hearsay evidence, and that an arrest or charge is insufficient to prove a violation of the 'living honorably' condition without evidence that the probationer actually committed some dishonorable act. Revocation based on a subsequent arrest is premature without establishing the outcome or sufficiently proving guilt of dishonorable conduct.
[1] Revocation of probation cannot be based solely on hearsay evidence.
[2] An arrest and charge for a crime, without more, does not constitute evidence of guilt or dishonorable conduct for the purpose of probation revocation.
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Join FLexlaw to unlock all legal intelligence“it appears well settled nevertheless that revocation of probation cannot be based solely on hearsay”
Establishes the core legal principle that hearsay alone is insufficient to support probation revocation, despite relaxed evidentiary rules
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Join FLexlaw to unlock all legal intelligenceBrown pleaded guilty to breaking and entering with intent to commit petit larceny and received three years probation with a condition that he serve th…
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PER CURIAM.
We set aside herein an order revoking appellant’s probation imposed upon a conviction of breaking and entering with intent to commit petit larceny.
Pursuant to a' plea bargain appellant pleaded guilty to the aforesaid charge and was given three years probation, a condition of which was that he served the first six months in the county stockade of Polk County. Upon his release from this six-month imprisonment he failed to report to his probation officer, as instructed, and he was subsequently arrested on an affidavit and warrant issued therefor. While under arrest pursuant to this warrant a new affi davit of violation was filed charging him with being “arrested by the Lakeland Police Department and charged with burglary” in violation of condition (4) of the probation order relating to “living honorably.”
At the revocation hearing the sole witness against appellant was his supervisor. He testified about appellant’s failure to report upon his release from the first six months of imprisonment as aforesaid, and then testified that he was advised (by an unnamed adviser) that appellant had been subsequently arrested by the Lakeland Police and charged with burglary as alleged in the second affidavit of violation. No other evidence of such an arrest exists in the record and there is virtually no testimony or other evidence as to what, if anything, resulted from such an arrest even assuming there was one. While appellant was present he did not testify with respect to such arrest nor was he asked about it by anyone. At the conclusion of the hearing the court immediately revoked appellant’s probation, expressly finding a violation of condition (4) thereof in that he “was arrested by the Lakeland Police Department and charged with burglary.” The court made no findings with respect to the charge of failure to report.
While it has been held, as the state submits, that because of the relative informality of revocation of probation proceedings the hearsay rule will be relaxed, it appears well settled nevertheless that revocation of probation cannot be based solely on hearsay. White v. State, 301 So. 2d 464 (Fla.4th DCA 1974); Hampton v. State, 276 So. 2d 497 (Fla.3d DCA 1973); Franklin v. State, 226 So. 2d 461 (Fla.2d DCA 1969); McNeely v. State, 186 So. 2d 520 (Fla.2d DCA 1966). Here, the order of revocation was predicated on the burglary arrest, the only evidence of which was the hearsay statement of the probation supervisor. Moreover, even if appellant were arrested and charged with burglary such fact is of itself no evidence of his guilt of burglary or of any other dishonorable act.1
Accordingly, the evidence was insufficient to support an order of revocation of probation predicated on a Lakeland burglary arrest; and, in any case, the order relating thereto was premature as not abiding the outcome thereof, again assuming there was one, or without there having been otherwise sufficiently established that appellant was indeed guilty of some dishonorable conduct related to a burglary.
The order appealed from, therefore, should be, and it is hereby, reversed.
McNULTY, C. J., and HOBSON and SCHEB, JJ., concur. . While § 949.10, Fla.Stat., provides that a subsequent arrest on a felony charge shall be pri-ma facie evidence of the violation of the terms and conditions of probation, the purpose of this statute is only to authorize temporary revocation and retention in custody pending a hearing. Crum v. State, 286 So. 2d 268 (Fla.4th DCA 1973).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976)…voke the probation on a finding of a violation of Condition (H) because the only evidence introduced on that charge was an unidentified report which was hearsay. We agree. A revocation of probation may not be based solely on hearsay. Brown v. State, 338 So. 2d 573 (Fla.2d DCA 1976); Franklin v. State, 226 So. 2d 461 (Fla.2d DCA 1969); McNeely v. State, 186 So. 2d 520 (Fla.2d DCA 1966). While it is undisputed that appellant violated the terms of his probation by failing to file monthly reports, we are uncert…
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Wheeler v. State, 344 So. 2d 630 (Fla. 2d DCA 1977)…4th DCA 1974). Florida courts have held that while hearsay is admissible in revocation proceedings, a defendant’s probation cannot be revoked solely on the basis of hearsay evidence. White v. State, 301 So. 2d 464 (Fla.4th DCA 1974); Brown v. State, 338 So. 2d 573 (Fla.2d DCA 1976); Tuff v. State, 338 So. 2d 1335 (Fla.2d DCA 1976); Couch v. State, 341 So. 2d 285 (Fla.2d DCA 1977) opinion filed January 19, 1977. Some of the more significant constitutional issues in respect to admissibility of evidence have bee…
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Purvis v. State, 397 So. 2d 746 (Fla. 5th DCA 1981)…sustained on hearsay evidence alone. Combs v. State, 351 So. 2d 1103 (Fla.4th DCA 1977); Wheeler v. State, 344 So. 2d 630 (Fla.2d DCA 1977). Evidence of probationer’s arrest, without more, will not support a revocation of probation. Brown v. State, 338 So. 2d 573 (Fla.2d DCA 1976). The order revoking appellant’s probation is vacated and set aside. The judg-. ment and sentence based on the order revoking probation is similarly vacated and set aside. In so doing, we express no opinion on the merits of the un…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McNEELY v. State, 186 So. 2d 520 (Fla. 2d DCA 1966)
- Franklin v. State, 226 So. 2d 461 (Fla. 2d DCA 1969)
- Crum v. State, 286 So. 2d 268 (Fla. 4th DCA 1973)
- White v. State, 301 So. 2d 464 (Fla. 1st DCA 1974)
- Hampton v. State, 276 So. 2d 497 (Fla. 3d DCA 1973)