holding that the evidence was insufficient to establish that defendant changed his residence without permission where defendant’s probation officer made a single visit to defendant’s address to find defendant and was told by defendant’s aunt and his mother that defendant no longer lived there
How later courts described this case
- holding that the evidence was insufficient to establish that defendant changed his residence without permission where defendant’s probation officer made a single visit to defendant’s address to find defendant and was told by defendant’s aunt and his mother that defendant no longer lived there
- stating that, to establish probationer committed the alleged offense and violated probation, the proof required is a preponderance of the evidence
Written by the judges who cited it.
The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LATASIA WEBB,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-4232
[January 7, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Matthew I. Destry, Judge; L.T. Case No. 11019070
CF10A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Latasia Webb (“defendant”) pled no contest to uttering a forged or false
instrument (bank check), and in return received a withhold of adjudication
and five years of probation. Two months later, defendant pled guilty to
probation violations, and the court reinstated her probation with a
modification that she complete six months of day reporting. Approximately
three months after her probation was reinstated, the State filed new
affidavits alleging defendant violated probation once again by failing to
attend and successfully complete day reporting and the re-entry program
(condition 18), failing to report to her probation officer (condition 1), and
changing her place of residence without procuring consent from her
probation officer (condition 3). At the conclusion of the hearing on the
violations, the trial court found there was sufficient evidence that
defendant violated all three of these probation conditions. As a result, the
trial court revoked her probation, adjudicated her guilty of the underlying
crime, and sentenced her to five years in prison. On appeal, defendant
argues that the trial court erred in revoking her probation because the
violations of both conditions 18 and 3 were founded solely on hearsay
evidence. For the reasons set forth below, we reverse the trial court’s
order.1
“In probation revocation cases the trial court has broad discretion to
determine whether a condition of probation has been violated.” Perez v.
State, 801 So. 2d 1001, 1001 (Fla. 4th DCA 2001). “Accordingly, the
appropriate standard of review for judgments finding probation violations
is whether the trial court abused its discretion in finding the violation.”
Hurst v. State, 941 So. 2d 1252, 1253 (Fla. 1st DCA 2006). “For a violation
of a condition of probation to trigger a revocation, the violation must be
willful and substantial, and the state must prove it by the greater weight
of the evidence.” Tobias v. State, 828 So. 2d 1066, 1068 (Fla. 4th DCA
2002). Proof sufficient for a criminal conviction is not required. See
Stevens v. State, 409 So. 2d 1051, 1052 (Fla. 1982). Rather, “[t]he proper
standard . . . is whether a preponderance of the evidence establishes that
the probationer committed the charged offense.” Bowser v. State, 937 So.
2d 1270, 1271 (Fla. 2d DCA 2006). While, in meeting this lesser standard,
the State is permitted to introduce hearsay evidence, “hearsay alone is
insufficient to establish a violation of a condition of probation.” Kiess v.
State, 642 So. 2d 1141, 1142 (Fla. 4th DCA 1994).
With respect to condition 3, the defendant’s probation officer testified
that defendant provided her godsister’s address as her residence. When
she went to this address to find defendant, defendant’s aunt stated that
defendant was not living there. She also testified that another officer was
sent to that same address, and that officer also received confirmation that
defendant was not living there. Additionally, defendant’s probation officer
testified that she called defendant’s mother who stated that defendant did
not live at that address. The only non-hearsay evidence relating to this
condition was the probation officer’s testimony that defendant was not at
the residence when she visited. This one-time observation establishes only
that defendant was not home on the day of her visit. See Rowan v. State,
696 So. 2d 842, 843 (Fla. 2d DCA 1997) (testimony of probation officer
that landlord told him probationer moved from approved residence was
hearsay and could not support revocation of probation without additional
non-hearsay evidence); Smith v. State, 690 So. 2d 733, 734 (Fla. 4th DCA
1997) (testimony of probation officer that probationer’s grandmother told
him that probationer no longer lived at residence, without non-hearsay
evidence, was insufficient to support probation revocation); Brown v. State,
659 So. 2d 1260, 1262 (Fla. 4th DCA 1995) (trial court improperly found
1 Defendant concedes in her initial brief that the violation of condition 1 of her
probation was supported by direct evidence, which supports a finding that she
violated her probation.
2
defendant guilty of changing his residence without permission based on
hearsay evidence from defendant’s community control officer, who testified
that when she went to defendant’s address to verify his residence,
defendant’s sister told her that defendant no longer lived there). Therefore,
the State failed to establish that the violation of condition 3 was supported
by competent, substantial evidence.
Defendant also raised an objection with respect to the evidence
supporting condition 18. At the revocation hearing, the only evidence
supporting this violation was hearsay that came via the testimony of the
probation officer who testified that she received a call from the Sheriff’s
Office notifying her that defendant did not successfully complete the day
reporting program. No non-hearsay evidence was presented to establish a
violation of condition 18. Although the trial court made a specific finding
that this violation was supported by non-hearsay evidence, specifically a
claimed admission by defendant to her probation officer that she failed to
complete the day reporting program, a review of the transcript shows that
defendant’s actual statement was too vague to constitute an admission in
this regard:
[Witness]: It was [the Sheriff’s Office] monitoring her GPS. I
met with her two days prior before the detectives, two or three
days prior, before the detectives contacted me. And
[defendant] advised me she didn’t think that [the Sheriff’s
Office] was properly monitoring her bracelet. And I asked her
why would you say something like that?
[State]: When you say her, I am confused.
[Witness]: The offender. She said, I’m just telling you, I don’t
think they are willing. I told her, yes, they are. Whatever it is
that you are doing, you need to stay on task. And then I get
the call and then I get the [Sheriff’s Office] paper telling me
that she did not successfully complete the program because
they could not locate her for two or three days.
Defendant’s statement was that she did not believe the Sheriff’s Office
was monitoring her ankle bracelet; she said nothing about failing to
complete the day reporting program. As such, the trial court improperly
found defendant guilty of violating condition 18 based solely on hearsay
evidence. See Smith v. State, 690 So. 2d at 734; Brown v. State, 659 So.
2d at 1262.
3
It is unclear from the record whether or not the trial court would have
revoked defendant’s probation and sentenced her to five years of
imprisonment based upon a violation of condition 1 alone. We therefore
remand with instructions that the trial court reconsider defendant’s
probation revocation and sentence in light of this opinion. See Brown v.
State, 12 So. 3d 877, 879-80 (Fla. 4th DCA 2009); Oertel v. State, 82 So.
3d 152, 157 (Fla. 4th DCA 2012). We leave to the trial court’s discretion
the issue as to what sentence, if any, defendant should receive on remand.
See Davis v. State, 474 So. 2d 1246, 1247 (Fla. 4th DCA 1985); see also
Fugueroa-Montalvo v. State, 10 So. 3d 173, 175-76 n.3 (Fla. 5th DCA
2009).
Affirmed in part, Reversed in part, and Remanded with instructions.
WARNER, TAYLOR and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4