GEORGE A. DEMCHAK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed a probation revocation order, holding that the trial court lacked sufficient competent evidence to establish that Demchak's criminal conduct occurred during his probationary period rather than before it commenced.
Probation may be revoked for a subsequent crime conviction only if the illegal conduct occurred during the probationary period. The court held that some competent evidence is required to establish when the improper conduct occurred, and that probation revocation cannot be based solely on hearsay evidence or an indictment with ambiguous dates of overt acts.
[1] A defendant's probation may be revoked based solely on a conviction for a subsequent crime, provided the illegal activity occurred during the probationary period.
[2] Improper conduct occurring prior to the entry of a probation order cannot serve as the basis for revocation, even if the resulting conviction occurs while the defendant i…
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Join FLexlaw to unlock all legal intelligence“However, the illegal activity giving rise to the conviction must occur during the probationary period.”
Establishes the critical temporal requirement for probation revocation based on subsequent conviction.
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Join FLexlaw to unlock all legal intelligenceDemchak pleaded guilty to LSD possession and was placed on probation on April 28, 1975. In September 1975, he was indicted by federal grand jury for c…
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DAUKSCH, Judge.
This is an appeal from an Order revoking Appellant’s probation.
Appellant pleaded guilty to possession of LSD and was placed on probation on April 28,1975. The standard conditions of probation were imposed. In September, 1975, Appellant was indicted by a federal grand jury. He was charged with conspiracy and possession and distribution of various controlled substances. The indictment alleged that the overt acts in furtherance of the conspiracy occurred “on or about March 13, 1975, and continuing up to and including May 5, 1975 ...”
Appellant was convicted by a federal jury on March 3, 1976, on one count of conspiracy to distribute phencyclidine. Shortly thereafter, an affidavit of violation of probation was filed against him. Appellant was charged with violating that condition of his probation which required him to live and remain at liberty without violating any law “in that, in the United States District Court for the Southern District of Florida, he was convicted of Conspiracy to Distribute Phencyclidine on March 3, 1976.” The lower court found that Appellant violated this condition and revoked his probation.
A defendant’s probation may be revoked solely on the basis of a conviction for a subsequent crime. Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968). However, the illegal activity giving rise to the conviction must occur during the probationary period. O’Steen v. State, 261 So. 2d 208 (Fla. 1st DCA 1972). Improper conduct occurring prior to entry of the probation order cannot be the basis for revocation even though the conviction resulting from such conduct occurs while the defendant is on probation. Id.
The only evidence that 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 competent evidence that Appellant engaged in improper conduct after April 28, 1975 is required. We also note in the transcript that there was some confusion at the revocation hearing as to the dates of the overt acts alleged in the indictment. The lower court’s copy of the indictment included a penciled in date of May 2,1975. Appellant’s copy of the indictment did not show this change.
We hold that there was insufficient evidence presented at the hearing to support the lower court’s Order revoking Appellant’s probation. This cause is reversed and remanded for a determination thru competent evidence whether or not the Defendant violated his probation after April 28, 1975 and before May 5, 1975.
REVERSED and REMANDED.
ALDERMAN and LETTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Combs v. State, 351 So. 2d 1103 (Fla. 4th DCA 1977)…ated Combs. There was no other evidence connecting Combs to the burglary. While hearsay evidence is admissible in probation revocation proceedings, a defendant’s probation cannot be revoked solely on the basis of hearsay evidence. Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA opinion filed April 7, 1977); Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975); Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974). The State attempts to avoid this rule by pointing out that other evidence was offered at the heari…
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Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)…roper basis for revocation because it was committed on May 19,1978, after Jess’s term of probation had already expired on December 12, 1977. Curry v. State, 362 So. 2d 36 (Fla. 3d DCA 1978), cert. denied, 372 So. 2d 471 (Fla.1979); Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977); § 948.06(1), Fla.Stat. (1979). The allegation that the defendant had violated the condition of probation requiring the submission of monthly reports was made in an affidavit which was never withdrawn by the state and which had…
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Maselli v. State, 446 So. 2d 1079 (Fla. 1984)…d this argument and affirmed the order of revocation, reasoning as follows: It is well settled that the conviction of a crime is a sufficient basis for a probation revocation. Franklin v. State, 356 So. 2d 1352 (Fla. 2d DCA 1978); Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977); Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968). The fact that the defendant may have pled nolo conten-dere does not detract from the legality of his conviction. Before a judge can accept a plea of nolo contendere, he must…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975)
- Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968)
- Boy Elijah O'Steen v. State, 261 So. 2d 208 (Fla. 1st DCA 1972)
- Parker v. State, 303 So. 2d 56 (Fla. 4th DCA 1974)
- Obie Lee Sharp v. State, 303 So. 2d 56 (Fla. 4th DCA 1974)