BOB TUFF, APPELLANT
v.
STATE OF FLORIDA, APPELLEE
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Appellant's probation was revoked based on two alleged violations: failure to file monthly reports and a new arrest. The court reversed the revocation because the evidence supporting the arrest-based violation consisted solely of inadmissible hearsay, and the court could not determine whether revocation would have occurred based on the admitted reporting violation alone.
A revocation of probation may not be based solely on hearsay. The revocation order was reversed because the evidence supporting the arrest-based violation was entirely hearsay, and it was unclear whether the trial court would have revoked probation based solely on the admitted reporting violation.
[1] A revocation of probation may not be based solely on hearsay evidence.
[2] A probation revocation hearing may be held based on a new affidavit alleging the same violation after a prior revocation order is reversed.
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Join FLexlaw to unlock all legal intelligence“A revocation of probation may not be based solely on hearsay.”
Establishes the fundamental legal principle that governs probation revocation proceedings and the basis for the court's reversal.
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Join FLexlaw to unlock all legal intelligenceTuff was on probation for breaking and entering with intent to commit a felony. During probation, he failed to submit written monthly reports for Octo…
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SCHEB, Judge.
Appellant was placed on probation for breaking and entering with intent to commit a felony in violation of Section 810.02, Florida Statutes (1973). During the probation period, an affidavit and warrant were issued which accused the appellant of the following:
Violating Condition (B) of the Order of Probation which reads, “Not later than the fifth day of each month, until the defendant’s release, make a full and truthful report to the defendant’s Probation Supervisor on the form provided for the purpose, or as otherwise directed by the supervisor.” to-wit: In that the aforesaid has failed to submit the necessary written monthly reports for the months of October, November, and December, 1975.
Violating Condition (H) of the Order of Probation which reads, “Live and remain at liberty without violating law.” to-wit: In that on 1-13-76, the aforesaid was arrested by Detective H. E. Wareham and J. Lorenz of the Hillsborough County Sheriff’s Department, for the offense of Breaking and Entering an Auto and Resisting Arrest with Violence.
A probation revocation hearing was held. At the hearing, appellant pled guilty to failing to file monthly reports as required by Condition (B). He pled not guilty to the other charge. The only evidence that appellant violated Condition (H) was contained in an unidentified report which gave an account of the arrest incident on which the second probation violation charge was based. The trial judge read the report and recited a summary of its contents at the hearing.
Upon finding the appellant violated both Conditions (B) and (H), the trial judge revoked the appellant’s probation and sentenced him to fifteen years imprisonment.
Appellant contends that it was error for the trial court to revoke 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 uncertain whether the trial court would have revoked probation and imposed the sentence it did solely on that ground. Accordingly, the order of revocation is reversed and the cause is remanded to the trial court for further proceedings. Since reversal of an order of revocation of probation, on the ground that it was based solely on hearsay, does not bar a second revocation hearing based on the filing of another affidavit alleging the same violation, Robbins v. State, 318 So. 2d 472 (Fla.4th DCA 1975); White v. State, 301 So. 2d 464 (Fla.1st DCA 1974); Hampton v. State, 276 So. 2d 497 (Fla.3d DCA 1973), this proceeding may include a second hearing on revocation based upon violation of Condition (H). Should the state elect not to file a new affidavit, then the trial judge must determine whether probation should be revoked on the basis of appellant’s admitted violation of Condition (B); and if so, the trial court shall then impose sentence on appellant.
Reversed and remanded.
BOARDMAN, A. C. J., and GRIMES, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (27 total)
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Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)…der by the trial judge. We have done that when a substantial ground for revocation was reversed leaving only proof of the violation of a technical ground to support the revocation. McKeever v. State, 359 So. 2d 905 (Fla. 2d DCA 1978); Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976). But here the appellant’s revocation is supported by ample evidence, including his own admission, that he left the county for over six months and also failed to file his monthly reports. Appellant’s wilful failure to comply with t…
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Sterling Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979)…o. 2d 738 (Fla. 2d DCA 1977). The finding of a violation of condition (2), not reporting, is supported by substantial, competent evidence but is a technical violation on which we would normally reverse and remand for reconsideration. Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976). In Tuff, we were “uncertain whether the trial court would have revoked probation and imposed the sentence it did solely on that ground.” 338 So. 2d at 1336. Here, however, the trial judge made the following comment at the conclus…
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Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)…entence on just that ground, without consideration of the burglary. We therefore think it appropriate to remand the cause so that the lower court may now make those determinations. Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979); Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976); see McKeever v. State, 359 So. 2d 905 (Fla. 2d DCA 1978); Jones v. State, 348 So. 2d 942 (Fla. 2d DCA 1977); compare Scherer v. State, 366 So. 2d 840 (Fla. 2d DCA 1979) (unsupported probation violation not substantial in relation…
Previewing 3 of 27 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)
- White v. State, 301 So. 2d 464 (Fla. 1st DCA 1974)
- Brown v. State, 338 So. 2d 573 (Fla. 2d DCA 1976)
- Hampton v. State, 276 So. 2d 497 (Fla. 3d DCA 1973)
- Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975)