Bell v. State, 5D14–1569.

• Decision Date: 09 October 2015
• Docket Number: No. 5D14–1569.,5D14–1569.
• Citation: 179 So.3d 349
• Parties: Marquis L. BELL, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

179 So.3d 349

Marquis L. BELL, Jr., Appellant,

v.STATE of Florida, Appellee.

No. 5D14–1569.

District Court of Appeal of Florida, Fifth District.

Oct. 9, 2015.

James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, C.J.

Marquis L. Bell, Jr., appeals his adjudication for violation of probation. We affirm the trial court's finding that Bell violated his probation by possessing illicit drugs based upon this court's precedent in Terry v. State, 777 So.2d 1093 (Fla. 5th DCA 2001), which held that a probation officer's testimony regarding positive results of an on-site or "field" drug test that the officer personally conducted, along with hearsay evidence from a positive laboratory test on the same urine sample, constituted competent, substantial evidence sufficient to support a finding that the defendant violated his or her probation by using or possessing drugs. As to this issue, we certify that our decision conflicts with Queior v. State, 157 So.3d 370, 373 (Fla. 2d DCA 2015), rev. granted, No. SC15–367, 2015 WL 1894002 (Fla. April 14, 2015) and Dawson v. State, 40 Fla. L. Weekly D1683, 2015 WL 4464695 (Fla. 1st DCA July 21, 2015).

We reverse the trial court's finding that Bell violated his probation by associating with persons engaged in criminal activity because this ground was not alleged in the violation affidavit. See Manis v. State, 30 So.3d 586 (Fla. 5th DCA 2010). Because it is clear from this record that the trial court would have revoked Bell's probation and imposed the same sentence based solely upon Bell's possession of illicit drugs, no further proceedings are required. See, e.g., Crapps v. State, 155 So.3d 1242, 1247 (Fla. 4th DCA 2015) ("[W]e will affirm a revocation of probation based on both proper and improper grounds only when it is clear from the record that the trial court would have revoked the defendant's probation absent the improper grounds.").

We write further to explain why we believe that Terry was decided correctly. First, we will discuss the different evidentiary standards that apply to violation of probation hearings. Second, we will discuss the significance of a drug use/drug possession violation and the evidence typically relied upon by the state to prove the violation. Third, we will discuss the conflict cases, both (1) what we view as a mistake in classifying evidence that may have led our sister appellate courts to reach a different result and (2) what appears to be a more restrictive application of evidentiary rules than should apply in VOP hearings, which may be a second reason for the departure from Terry. Finally, we will explain why we believe that the trial court correctly admitted the evidence relied upon by the State to prove the violation in this case, and why that evidence was sufficient to support the trial court's finding that Bell violated his probation.

Unique Evidentiary Standards Apply To VOP Hearings

It is well established that "[p]robation is an act of grace to a defendant convicted of a crime." Peraza v. Bradshaw, 966 So.2d 504, 505 (Fla. 4th DCA 2007). Because a probationer has already been afforded the full panoply of constitutional protections guaranteed by the Constitution to an accused individual prior to his or her conviction, "[w]hen a defendant violates probation, that defendant is not in the same position as a defendant arrested for the commission of a crime for which he or she is deemed innocent until proven guilty beyond a reasonable doubt." Id. As a matter of "grace ... [probation is also] subject to the trial court's discretion." Saidi v. State, 845 So.2d 1022, 1028 (Fla. 5th DCA 2003). Because of these principles:

A probation revocation hearing is more informal, the charging affidavit need not comply with the requirements indictments and informations must meet, the strict rules of evidence can be deviated from, and the admission of [otherwise inadmissible] hearsay [as substantive evidence] is not error. Furthermore, there is a lesser burden of proof because only the conscience of the court must be satisfied.

Cuciak v. State, 410 So.2d 916, 918 (Fla.1982) (emphasis added). Even with these relaxed rules, however, findings in a violation of probation hearing cannot be based solely on hearsay that could not be admitted as substantive evidence in other proceedings. See, e.g., McDoughall v. State, 133 So.3d 1097, 1099 (Fla. 4th DCA 2014). Rather, "[t]he hearsay must be corroborated by non-hearsay." Id. (citing J.F. v. State, 889 So.2d 130, 131–32 (Fla. 4th DCA 2004) ).

The Drug Use/Possession Violation In General

It is worth noting that probation revocation for the use or possession of illegal drugs is one of the more frequent violations that we see, probably because (1) the violation can be detected with relatively inexpensive drug testing conducted during one of the probationer's routine appointments at the probation office; and (2) the state does not have the resources to monitor the conduct of probationers through rigorous or frequent field investigations. Consequently, the evidence necessary to prove this violation is of particular statewide significance.

The state regularly seeks to prove this violation primarily by calling the probation officer to testify regarding the general conditions of probation, to identify the probationer, and to explain that the probationer was instructed on the relevant conditions of probation. The probation officer then explains what he or she did and observed when collecting the urine sample from the defendant and administering the presumptive "field" test, along with his or her personal observation of the test's positive indication of drug use. Evidence regarding this initial stage of drug testing is routine and ubiquitous, such that judges throughout the state (i.e., the fact-finders in VOP proceedings) are well-versed in the procedure. And, studies have proven the results of these tests to be highly reliable, even when the test is not administered by a trained laboratory analyst. For example, in 2000 the National Highway Traffic Safety Administration ("NHTSA") released a study of different field drug tests used by various law enforcement agencies. The NHTSA concluded in its final report that the overall error rates were a low 2.5% when the tests were administered by officers and an even lower 0.8% when administered by trained laboratory technicians. National Highway Traffic Safety Administration, Field Test of On–Site Drug Detection Devices, Final Report October 2000, http://www.nhtsa.gov/people/injury/research/pub/onsite-detection/Drugs—Ch5.htm.

In 2004, the Substance Abuse and Mental Health Services Administration reported that on-site or field "urine testing ha[s] been subjected to evaluations by investigators independent of the manufacturers and found to perform similar to that of the instrumented immunoassay tests¹ in certified laboratories." 1 Drug Testing Law Tech. & Prac. § 5:5 "On-site Drug Testing," (quoting Substance Abuse and Mental Health Services Administration, "Proposed Revisions to the Mandatory Guidelines for Federal Workplace Drug Testing Programs," (April 13, 2004)). The Administration further concluded that "[l]ittle difference in the performance of these devices was observed between tests conducted by laboratory technicians and laymen who had been trained in the proper procedures for conducting and reading the tests." Id. ; see also Adkins v. T.C. Martin, 699 F.Supp. 1510, 1513 (W.D.Okl.1988) ("It has been authoritatively determined that the immunoassay test is 95 per cent accurate, it is the most widely used and reliable method of laboratory medicine in the world, and forms a sufficient basis for disciplinary action that does not violate due process. It is sufficiently reliable even if it is the only evidence in a parole revocation hearing.").

Although this testimony obviously meets the foundational test for admissibility, see § 90.402, Fla. Stat. (2014) ("All relevant evidence is admissible, except as provided by law."); 28A C.J.S. Drugs and Narcotics § 390 ("The results of field tests, laboratory tests, and urinalysis tests are relevant in criminal drug prosecutions."), states differ in their rulings on whether and under what circumstances the results of "presumptive" field tests can be admitted in criminal jury trials. Compare, e.g., Fortune v. State, 304 Ga.App. 294, 696 S.E.2d 120 (2010) (holding that chemical field tests of suspected narcotics were scientific procedures that had been so widely accepted in Georgia courts that they were admissible in criminal jury trials without expert foundational testimony), with State v. Martinez, 143 Conn.App. 541, 69 A.3d 975 (2013) (disagreeing with Fortune and holding that a police officer could not testify to the results of a presumptive field test absent a sufficient evidentiary foundation testified to by a scientific expert). However, given the well-settled rule that "the strict rules of evidence can be deviated from" in probation revocation proceedings, Cuciak, 410 So.2d at 918, Florida courts seemed to have generally accepted that the probation officer who conducted the presumptive drug test could testify to the results at the VOP hearing, so long as the officer had the training or experience necessary to understand the test and interpret the results. See Terry, 777 So.2d at 1094 ; Carter v. State, 82 So.3d 993 (Fla. 1st DCA 2011) (distinguishing Terry where probation officer testifying to test results "gave no indication that he was certified to administer the test, or had in fact administered it with any frequency"); Weaver v. State, 543 So.2d 443 (Fla. 3d DCA 1989) (holding that the officer's testimony about the field test results, standing alone, could not support the finding of a violation where the officer did not even know the name of the field test or that it...