WILLIE EDWARD ISAAC, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Willie Edward Isaac appealed his probation violation finding and sentencing. The Florida District Court of Appeal affirmed the finding that Isaac violated probation based on drug test evidence, but reversed and remanded the sentencing to correct an improper denial of credit for time served on his original charges.
The trial court did not reversibly err in finding a probation violation because although the laboratory test was hearsay, the violation was supported by non-hearsay testimony from the probation officer regarding her personal field test and other violations. However, the court erred in apparently denying Isaac credit for time served on his original charges, as such credit was not waived as part of a plea bargain.
[1] Laboratory test results showing a positive drug screen are admissible in probation violation hearings, even if the laboratory representative does not testify.
[2] A probation violation may not be sustained solely on the basis of hearsay evidence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Isaac is correct that a violation may not be sustained solely on the basis of hearsay evidence.”
Establishes the legal principle that probation violations cannot rest exclusively on hearsay, though hearsay may be admissible.
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Join FLexlaw to unlock all legal intelligenceIsaac was arrested on original charges on October 16, 1998, and released by the Department of Corrections on June 19, 2003. He was re-arrested for vio…
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SALTER, J.
Willie Edward Isaac appeals a circuit court determination that he violated probation and his sentence following that determination. We affirm the finding that Isaac violated probation, but reverse with respect to one aspect of his sentence.
Isaac argues that the trial court reversibly erred by finding a violation of probation solely on the basis of hearsay evidence. The sole testimony was by the probation officer. No representative of the laboratory testified. Isaac is correct that the laboratory test in question (showing that Isaac was positive for cocaine) was hearsay, but in probation violation hearings such tests are admissible. Hayes v. State, 345 So. 2d 765 (Fla. 4th DCA 1977). Isaac is also correct that a violation may not be sustained solely on the basis of hearsay evidence. Weaver v. State, 543 So. 2d 443, 444 (Fla. 3d DCA 1989) (emphasis added).
The trial court’s determination was not based exclusively on hearsay, however. Isaac’s probation officer testified regarding his other violations, and she also personally conducted a field test (positive for cocaine and marijuana) before the urine sample was sent out for laboratory analysis. Although the laboratory results differed from the probation officer’s test in one respect — the laboratory test was negative for marijuana — the trial court properly concluded that the testimony was sufficient to support a violation. See Terry v. State, 777 So. 2d 1093 (Fla. 5th DCA 2001).
Isaac’s second issue on appeal has merit. The sentencing judge determined that a sentence of twenty-five years was appropriate as to two of the original counts and fifteen years as to a third count, all to run concurrently. The sentencing judge initially added “He’s entitled to all CTS,” which would mean credit for time served on his original charges and plea agreement (the record indicates that he was arrested on those charges on October 16, 1998 and released by the Department of Corrections on June 19, 2003) as well as for time served following the re-arrest for violation of probation (July 21, 2005).
In a further colloquy at the sentencing hearing, however, the State asserted that the twenty-five years was to run “from [Isaac’s] most recent violation,” and the court apparently imposed sentence on that basis. What is also clear from the transcript, however, is that Isaac did not knowingly waive credit for time served on the original offenses “as part of a plea bargain.” Cozza v. State, 756 So. 2d 272, 273 (Fla. 3d DCA 2000). Accordingly, we reverse and remand for the correction of Isaac’s sentence to reflect crédit for the time he actually served on the original charges. The State argues that Isaac failed to preserve this point or, alternatively, that he must initially seek relief under Florida Rule of Criminal Procedure 3.800. We disagree, finding that the court resen-tenced Isaac with a “sentence which it might have originally imposed before placing [him] on probation,” paragraph 948.06(2)(b), Fla. Stat. (2006), and then expressed an intention to allow credit for time served. Because that credit was not waived as part of a plea bargain, and because defense counsel raised the point at the sentencing, a further motion and hearing are not required.
Affirmed in part, reversed in part, and remanded for correction of sentence.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Queior, 191 So. 3d 388 (Fla. 2016)…ding probation officer’s testimony about a field drug test he personally conducted and the test results he personally observed “was based on his own personal observations and knowledge and, therefore, the testimony was not hearsay”); Isaac v. State, 971 So. 2d 908, 909 (Fla. 3d DCA 2007) (concluding trial court’s finding of a probation violation “was not based exclusively on [a]'hearsay” lab report where probation officer also testified to other probation violations and that she “personally conducted a field…
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Bray v. State, 75 So. 3d 749 (Fla. 1st DCA 2011)…course, hearsay which is not subject to an objection is admissible and may be as probative as other non-hearsay evidence. See Tallahassee Furniture Co., Inc. v. Harrison, 583 So. 2d 744, 754 (Fla. 1st DCA 1991). The State also cites Isaac v. State, 971 So. 2d 908 (Fla. 3d DCA 2007), but that case too fails to support affirmance here. In Isaac, a positive drug test was not the only basis for revoking probation. The Isaac court agreed that revocation cannot be based on hearsay exclusively. Id. at 909. Moreover…
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Queior v. State, 157 So. 3d 370 (Fla. 2d DCA 2015)…he alleged violations. The results of the laboratory tests performed by Alere Toxicology were also hearsay. See Chavous v. State, 597 So. 2d 943, 944 (Fla. 2d DCA 1992); McDoughall v. State, 133 So. 3d 1097, 1099 (Fla. 4th DCA 2014); Isaac v. State, 971 So. 2d 908, 909 (Fla. 3d DCA 2007); Hogan v. State, 583 So. 2d 426, 427 (Fla. 1st DCA 1991). It follows that the laboratory report was insufficient by itself to establish that Mr. Queior violated his probation by using hydromorphone. See Robinson v. State, 842…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989)
- Connor McDUFFIE v. Scotty's, Inc., 756 So. 2d 272 (Fla. 5th DCA 2000)
- Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000)
- Alvarez v. State, 777 So. 2d 1093 (Fla. 2d DCA 2001)
- Hayes v. State, 345 So. 2d 765 (Fla. 4th DCA 1977)
- Perrin v. SAM Kaye, Inc., 345 So. 2d 765 (Fla. 4th DCA 1977)