Colwell v. State, 2D02-2297.
| Decision Date | 05 March 2003 |
| Docket Number | No. 2D02-2297.,2D02-2297. |
| Citation | 838 So.2d 670 |
| Parties | Richard W. COLWELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
We review a conviction and sentence following revocation of Richard W. Colwell's probation. Mr. Colwell asserts that there was insufficient evidence for the trial court to find that he violated condition five of his probation by committing a new offense of domestic battery. We reverse.
The State presented only one witness at the revocation hearing to substantiate the domestic battery, the deputy who responded to a 911 call at a convenience store. At the convenience store, the deputy encountered Mr. Colwell's wife, who had placed the call from the public phone there. The deputy testified that Mrs. Colwell told her that Mr. Colwell had grabbed her and that she was afraid to go back to the house. The deputy described Mrs. Colwell's condition as intoxicated, hysterical, very frantic and excited, although she was not crying. The deputy observed a faint red mark on Mrs. Colwell's neck, which Mrs. Colwell said had resulted from Mr. Colwell grabbing her there. According to the deputy, Mrs. Colwell did not say when the incident happened, only that it had just occurred. Neither Mr. nor Mrs. Colwell testified at the hearing.
Mr. Colwell contends that his revocation was based on inadmissible hearsay and other insufficient evidence and it was, therefore, error to revoke his probation. We agree with his contention.
The transcript from the revocation hearing shows that the trial court properly recognized the distinction between hearsay that is admissible at a criminal trial based on an exception to the hearsay rule1 and inadmissible hearsay. The general rule is that hearsay evidence that would be inadmissible in a criminal trial cannot form the sole basis for revoking probation. Gammon v. State, 778 So.2d 390, 392 (Fla. 2d DCA 2001). The deputy's testimony about Mrs. Colwell's statements was clearly hearsay, but the trial court declined to rule whether, as argued by the State, it was admissible as an exception to the hearsay rule as an excited utterance.2 Instead the trial court found that there was additional evidence to prove the domestic battery—the red mark on Mrs. Colwell's neck that was consistent with her statements to the deputy and her hysterical demeanor. As a matter of law, this additional evidence was insufficient to sustain the revocation.
In Bales v. State, 793 So.2d 87 (Fla. 2d DCA 2001), we addressed a similar set of facts. At the defendant's revocation hearing, a police officer testified that the defendant's girlfriend said the defendant had punched her in the face and pushed her. The officer had also observed some redness on her elbow. Based on this evidence, the trial court concluded that the defendant had battered his girlfriend. In reversing, we held the officer's description of the girlfriend's statement was insufficient as pure hearsay to prove the battery. We did not address whether the girlfriend's statement coupled with the officer's observation of redness on her elbow was sufficient because the trial court's determination was premised only on the girlfriend's statement as reported by the officer.
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Russell v. State
...Court of Appeal in Santiago v. State, 889 So.2d 200 (Fla. 4th DCA 2004), and the Second District Court of Appeal in Colwell v. State, 838 So.2d 670 (Fla. 2d DCA 2003), and Colina v. State, 629 So.2d 274 (Fla. 2d DCA 1993), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), F......
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Russell v. State
...what appears to be contrary authority on this point in Santiago v. State, 889 So.2d 200 (Fla. 4th DCA 2004), Colwell v. State, 838 So.2d 670 (Fla. 2d DCA 2003) and Blair v. State, 805 So.2d 873 (Fla. 2d DCA 2001). Again, not one of these cases was cited by either party. Counsel are admonish......
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Sims v. State
...at 646 (quoting State v. Carter, 835 So.2d 259, 261 (Fla. 2002)). Applying these principles, the supreme court observed that in Santiago, Colwell, Colina, the Second and Fourth Districts had required the State to establish "a direct nexus between the probationer and the alleged battery," wi......
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Santiago v. State, 4D04-264.
...presented is whether the evidence in whole was legally sufficient to sustain the revocation on these grounds. In Colwell v. State, 838 So.2d 670, 671-72 (Fla. 2d DCA 2003), the second district addressed the very issue of a victim's hearsay statements coupled with after-the-fact general obse......