Cerny v. State , No. 2D09–5338.

CourtCourt of Appeal of Florida (US)
Writing for the CourtWALLACE, Judge.
Citation65 So.3d 609
Decision Date22 July 2011
Docket NumberNo. 2D09–5338.
PartiesJohn Alan CERNY, Jr., a/k/a John Alan Cerny, Appellant,v.STATE of Florida, Appellee.

65 So.3d 609

John Alan CERNY, Jr., a/k/a John Alan Cerny, Appellant,
v.
STATE of Florida, Appellee.

No. 2D09–5338.

District Court of Appeal of Florida, Second District.

July 22, 2011.


[65 So.3d 610]

James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.WALLACE, Judge.

John Alan Cerny, Jr., appeals the order revoking his probation and his resulting sentences. Because the State failed to prove by a preponderance of the evidence the new law violation upon which the circuit court based the order revoking Mr. Cerny's probation, we reverse.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2007, Mr. Cerny entered guilty pleas to the charges in circuit court case numbers 07–CF–10918, 07–CF–14421, and 07–CF–14452 in exchange for sentences of eighteen months' probation on the charges.1 Later, on January 10, 2008, Mr. Cerny entered a guilty plea to the charge in circuit court case number 07–CF–23328 for a sentence of thirty-six months' probation. 2 On the same day, the circuit court also sentenced Mr. Cerny in the three other cases to new terms of thirty-six months' probation based upon Mr. Cerny's admission to violating his probation in those cases. The circuit court designated Mr. Cerny's terms of probation in each of the four cases to run concurrently.

On August 5, 2009, Mr. Cerny's probation officer filed an affidavit of violation of probation alleging that Mr. Cerny had violated his probation in all four cases by committing four new law violations. The alleged new law violations were aggravated battery, domestic violence by strangulation, false imprisonment, and tampering with a witness. The State alleged that each of the four offenses stemmed from an incident occurring on July 29, 2009, involving Mr. Cerny and his father, John Cerny, Sr.

After a hearing on the alleged violations of probation, the circuit court concluded that the State failed to establish by a preponderance of the evidence that Mr. Cerny had committed the new law violations of domestic violence by strangulation, false imprisonment, and tampering with a

[65 So.3d 611]

witness. Accordingly, the circuit court dismissed the alleged violations of probation based upon those charges. Nevertheless, the circuit court found that Mr. Cerny had violated his probation by committing the new law offense of aggravated battery, and it revoked Mr. Cerny's probation in all four cases based upon that new law violation. The circuit court imposed the maximum sentence of five years' prison on each of Mr. Cerny's underlying third-degree felonies. The circuit court also designated several of the sentences to run consecutively, with the result that Mr. Cerny received sentences totaling twenty years in prison. This appeal followed.
II. THE ARGUMENTS ON APPEAL

On appeal, Mr. Cerny makes two arguments. First, he argues that the circuit court erred in finding that he had violated his probation because (1) the State failed to prove that he committed the offense of aggravated battery and (2) the State relied exclusively on hearsay evidence to establish the alleged violation. Mr. Cerny concludes that the circuit court should have granted his motion to dismiss the alleged violation of probation at the conclusion of the State's case. We need not discuss Mr. Cerny's second argument because it is mooted by our disposition of his first argument.

III. THE STANDARD OF REVIEW AND OTHER PRELIMINARY MATTERS

Our review of an order of revocation of probation is for abuse of discretion. Boyd v. State, 1 So.3d 1186, 1187 (Fla. 2d DCA 2009). However, before the circuit court can exercise its discretion to revoke probation, the State must establish a violation of probation by the greater weight of the evidence. Id. Here, the State alleged—in pertinent part—that Mr. Cerny had committed the new law violation of aggravated battery. “The proper standard for finding a new law violation is whether a preponderance of the evidence establishes that the probationer committed the charged offense.... ‘Proof sufficient to support a criminal conviction is not required to support a judge's discretionary order revoking’ probation.” Robinson v. State, 907 So.2d 1284, 1287 (Fla. 2d DCA 2005) (citations omitted) (quoting Robinson v. State, 609 So.2d 89, 90 (Fla. 1st DCA 1992)). Although hearsay is admissible in proceedings for revocation of probation, the circuit court may not base a revocation order solely upon hearsay evidence. Boyd, 1 So.3d at 1187.

IV. THE EVIDENCE PRESENTED AT THE HEARING

At the revocation hearing, the State established that Mr. Cerny and his father shared a home in Temple Terrace. Before the alleged incident, Mr. Cerny's father had suffered a stroke. As a result, the father had trouble with communicating and walking.

The State presented the testimony of a sheriff's deputy. The deputy did not witness the incident that formed the basis for the charges. Instead, the deputy had been dispatched to a neighbor's house on July 29, 2009, the date of the alleged incident. There, the deputy observed and spoke with Mr. Cerny's father, the alleged victim of the aggravated battery. When the deputy arrived at the neighbor's house, the father...

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1 practice notes
  • Savage v. State, No. 2D12–2269.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2013
    ...assess whether the finding of a willful and substantial violation is supported by competent substantial evidence. See Cerny v. State, 65 So.3d 609, 613–14 (Fla. 2d DCA 2011) (Altenbernd, J., concurring specially); Hicks v. State, 890 So.2d 459, 460 (Fla. 2d DCA 2004); Glasier v. State, 849 ......
1 cases
  • Savage v. State, No. 2D12–2269.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2013
    ...assess whether the finding of a willful and substantial violation is supported by competent substantial evidence. See Cerny v. State, 65 So.3d 609, 613–14 (Fla. 2d DCA 2011) (Altenbernd, J., concurring specially); Hicks v. State, 890 So.2d 459, 460 (Fla. 2d DCA 2004); Glasier v. State, 849 ......

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