Crossin v. State

• Decision Date: 17 February 1971
• Docket Number: No. 70-488,70-488
• Parties: Thomas Frances CROSSIN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 142

244 So.2d 142

Thomas Frances CROSSIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 70-488.

District Court of Appeal of Florida, Fourth District.

Feb. 17, 1971.

George A. Shahood and A. J. Ryan, Jr., Dania, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Charles W. Musgrove and Rodney Durrance, Jr., Asst. Attys. Gen., West Palm Beach, for appellee.

MAGER, Judge.

This is an appeal from an order revoking probation and imposing sentence.

On April 10, 1962 appellant plead guilty to the offense of unlawful possession of narcotics. On May 25, 1962, the trial court adjudged the appellant to be guilty and suspended the imposition of sentence, placing appellant on probation for a period of three years. On June 19, 1963, the trial court entered an order of revocation of probation of appellant for violating a condition of his probation, to-wit, changing his residence without first procuring the consent of his probation supervisor. On June 21, 1963, the trial court sentenced the appellant to imprisonment in the state prison for a term of five years based upon the original conviction of the crime of unlawful possession of narcotics. ¹ Pursuant to appellant's timely motion for mitigation of sentence the trial court on August 16, 1963 vacated and set aside the prior adjudication of guilt imposed on April 10, 1962; vacated and set aside the order of revocation of probation entered on June 21, 1963; vacated and set aside the sentence of five years imposed on June 21, 1963, withheld adjudication and entered a modifying order placing appellant on probation until August 16, 1967.

On February 9, 1966, pursuant to an affidavit filed by the Probation and Parole Commission, setting forth violations by appellant of the conditions of probation, a warrant was issued for the arrest of appellant. The alleged violations consisted substantially of failing to report to his probation supervisor in New Jersey since December 7, 1965; terminating employment without the consent of his probation supervisor; changing his residence without obtaining the consent of the probation supervisor; and not being truthful to his probation supervisor in giving his residence address. ² On April 20, 1970, appellant was arrested in Broward County pursuant to the warrant and a hearing was held before the trial court on May 8, 1970. On May 8 orders were entered by the trial court adjudging that appellant was guilty of the violations of the terms of his probation as charged and revoking appellant's probation; adjudging the appellant guilty of the original offense and sentencing him to a five year term at the State Prison, Raiford, Florida. Following the court's denial of appellant's motion to mitigate the instant appeal was taken.

Appellant urges reversal of the decision of the trial court on the grounds that (1) the order of revocation was based only upon hearsay evidence in the form of written correspondence, and (2) the order revoking probation and sentencing appellant to five years at hard labor constituted cruel and unusual punishment.

From an examination of the record below and the briefs we are of the opinion that appellant's contentions are unsupported in law and fact. At the May 8 revocation hearing letters alleged to have been written by appellant's probation supervisor in New Jersey to probation authorities in Florida were introduced over appellant's objection. The letters indicated violation of the terms and conditions of probation as previously charged. Testimony was received from Frank J. Velie, Jr. employed by the Florida Probation and Parole Commission, who had been assigned to appellant's case. Velie testified that he had discussed these violations with appellant, who apparently admitted them but offered explanations substantially to the effect that he had a personal understanding with the parole supervisor in New Jersey concerning the terms of his probation and that such terms and conditions were between him and the parole supervisor although not according to the written terms and conditions of the probation. Testimony by the appellant at the hearing substantiated Velie's testimony in greater detail and contradicted the letters previously admitted into evidence.

In Brill v. State, 1947, 159 Fla. 682, 32 So.2d 607, the Supreme Court of Florida commented on the nature of probation revocation hearings as follows:

'The major concern of the court at the hearing was whether or not appellant had been on good behavior during his suspended sentence. The liberty he was enjoying was by judicial grace, he had already plead guilty to the offense of selling moonshine liquor. The hearing is in no sense a retrial of the main offense. Having plead guilty to that, he is now subject to be sentenced as he might have been at the time the suspended sentence was promulgated if he has not observed its conditions. The hearing was to determine this and no more.

'Such hearings are informal and do not take the course of a regular trial, neither does the evidence have the same objective as that taken at a regular trial. Its purpose is to satisfy the conscience of the court as to whether the conditions of the suspended sentence have been violated. A secondary purpose is to give the person accused of violating the suspended sentence a chance to explain away the accusation against him, but even this does not contemplate a strict or formal trial. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266; Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Fleenor v. Hammond et al., 6 Cir., 116 F.2d 982, 132 A.L.R. 1241.'

In State v. Shelby, Fla.App.1957, 97 So.2d 631, the First District Court of Appeal, citing Brill, also observed:

'The latitude of inquiry is such that even though evidence upon which the revocation is based would be inadmissible upon trial of the accused for a crime, it is competent for the trial court to consider it on the issue of compliance with the conditions under which suspension of sentence was granted. Section 948.06(1) simply provides for an informal hearing whereby the trial court may determine whether the conditions of the probation order have been violated. Caston v. State, Fla., 58 So.2d...