Dean v. State
| Decision Date | 23 February 2007 |
| Docket Number | No. 2D06-2983.,2D06-2983. |
| Citation | 948 So.2d 1042 |
| Parties | Paul Roy DEAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Brooke V. Elvington and Leslie M. Sammis of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
Paul Roy Dean appeals the revocation of his probation, claiming the State failed to prove by the greater weight of the evidence that he willfully and substantially violated conditions 15 and 27. We agree and reverse for the reasons discussed below.
On May 27, 2004, Dean was convicted of driving under the influence involving serious bodily injury and placed on five years' probation. By amended affidavit filed on August 17, 2005, Dean was charged with violating conditions 15 and 27 of his probation. The condition 27 violation related to Dean's failure to perform 150 community service hours at the rate of five hours per month. The State rightfully concedes error on this point. There was no starting or ending date specified in the probation order as well as no evidence of Dean's refusal to perform. See Pollard v. State, 930 So.2d 854, 855 (Fla. 2d DCA 2006) (citing Shipman v. State, 903 So.2d 386, 387 (Fla. 2d DCA 2005)) ("[T]he State cannot prove a willful and substantial violation of a condition to complete community service hours, even when the order contains a per-month rate of completion, when the order does not contain a beginning and ending date for completing the hours and when there is sufficient time remaining for the probationer to complete the required hours at the required rate."). We have previously suggested a manner in which to rectify this type of deficiency in a probation order and why it is important to do so.1
The condition 15 violation related to prohibitions against alcoholic beverage consumption and visiting businesses whose main source of income is from the service of alcoholic beverages. Although the amended affidavit alleged Dean violated condition 15 in both alternative ways, no evidence whatsoever was presented as to the latter provision. Rather, at the violation hearing, the State relied exclusively on the testimony of Carolyn Upshaw, a probation office supervisor, and Sandra Lugo, the program manager of Interlock Systems of Florida. Interlock Systems of Florida had installed and maintained an interlocking device in Dean's car. Dean was required to blow into this device prior to starting his vehicle and at random times during the operation of the vehicle. The device was designed to detect whether Dean had consumed alcohol.
From notes in Dean's probation file, Ms. Upshaw testified that on several afternoons and early evenings, Dean's device registered positive readings. Significantly, none of the referenced records were introduced into evidence; nor did Dean's probation officer testify. Ms. Lugo explained pertinent aspects of the interlocking device in general. Apparently, if an unsatisfactory level of alcohol is detected in the breath sample required to start the vehicle, the ignition will "lock up." The test readings are downloaded by the company, and the probationer is then required to provide this information in conjunction with his monthly reports to his probation officer. Ms. Lugo testified in rebuttal that the company's records did not indicate any instrument malfunction. She further testified that "mouth alcohol" would register false positive readings based upon nonalcoholic beverages, including food. The State did not introduce any business records through this witness.
After his motion for judgment of acquittal was denied, Dean testified that he reported several failures of the interlocking device to the company and that the device was replaced on one occasion. Dean also testified that he had not consumed any alcoholic beverages since being placed on probation and that he passed every bimonthly urinalysis performed by probation personnel. Dean further testified that during several consensual random searches of his home, his probation officer found no alcohol. The State introduced no records or evidence to the contrary.
Finally, Dean's supervisor at his employment testified. The supervisor corroborated Dean's testimony, at least in part, that on two days after work he loaned Dean his cell phone to report the device's malfunctions and to call for a tow truck. He also read the device's message during these "lock ups" but could not recall the exact verbiage on the display. The supervisor further stated that he never observed Dean under the influence of alcohol or drugs—that it was "part of [his] training ... [to] continually examine [employees]" and anyone suspected of...
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Marzendorfer v. State, 1D06-4528.
...specify time frame in which probationer was to complete course and community control period had not expired); see also Dean v. State, 948 So.2d 1042 (Fla. 2d DCA 2007) (reversing finding of violation because, in part, probationer had ample time left in probation period to community service ......
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C.B.H. v. State
...cannot be based solely upon hearsay testimony.’ ” Miffin v. State, 19 So.3d 377, 378 (Fla. 2d DCA 2009) (quoting Dean v. State, 948 So.2d 1042, 1044 (Fla. 2d DCA 2007)). C.B.H. correctly asserts that the trial court revoked his probation based solely upon the hearsay testimony of the office......
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Miller v. State
...generally admissible at a revocation hearing, a revocation of probation may not be based solely on hearsay evidence. Dean v. State, 948 So.2d 1042, 1044 (Fla. 2d DCA 2007); Bales v. State, 793 So.2d 87 (Fla. 2d DCA For example, in Bales, the State filed an affidavit alleging that Bales had ......
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Parker v. State
...had been completed. A violation of probation sufficient to revoke the probation must be both willful and substantial. Dean v. State, 948 So.2d 1042 (Fla. 2d DCA 2007). The State has the burden of proving by the greater weight of the evidence that the probationer's actions were willful and s......