Demchak v. State
| Decision Date | 07 April 1977 |
| Docket Number | No. 76-943,76-943 |
| Citation | 351 So.2d 1053 |
| Parties | George A. DEMCHAK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Henry Prettyman, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from an Order revoking Appellant's probation.
Appellant pleaded guilty to possession of LSD and was placed on probation on April 28, 1975. The standard conditions of probation were imposed. In September, 1975, Appellant was indicted by a federal grand jury. He was charged with conspiracy and possession and distribution of various controlled substances. The indictment alleged that the overt acts in furtherance of the conspiracy occurred "on or about March 13, 1975, and continuing up to and including May 5, 1975 . . . "
Appellant was convicted by a federal jury on March 3, 1976, on one count of conspiracy to distribute phencyclidine. Shortly thereafter, an affidavit of violation of probation was filed against him. Appellant was charged with violating that condition of his probation which required him to live and remain at liberty without violating any law "in that, in the United States District Court for the Southern District of Florida, he was convicted of Conspiracy to Distribute Phencyclidine on March 3, 1976." The lower court found that Appellant violated this condition and revoked his probation.
A defendant's probation may be revoked solely on the basis of a conviction for a subsequent crime. Egantoff v. State, 208 So.2d 843 (Fla. 2d DCA 1968). However, the illegal activity giving rise to the conviction must occur during the probationary period. O'Steen v. State, 261 So.2d 208 (Fla. 1st DCA 1972). Improper conduct occurring prior to entry of the probation order cannot be the basis for revocation even though the conviction resulting from such conduct occurs while the defendant is on probation. Id.
The only evidence that Appellant acted improperly while on probation was the hearsay testimony of the prosecutor of the federal case. Probation revocation cannot be based solely on hearsay evidence. Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975); Sharp v. State, 303 So.2d 56 (Fla. 4th DCA 1974).
While the federal grand jury indictment, which was properly admitted into evidence, charged Appellant with criminal activity...
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State v. Gary
...which was overlooked at the sentencing hearing, before the probation was entered, he did not violate probation"); Demchak v. State, 351 So.2d 1053, 1054 (Fla.Dist.App.1977) (explaining that "[i]mproper conduct occurring prior to entry of the probation order cannot be the basis for revocatio......
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Patuxent Inst. Bd. of Review v. Hancock
...were for violations of the law occurring while the appellant was on probation). Other jurisdictions are in accord. In Demchak v. State, 351 So.2d 1053 (Fla.Dist.Ct.App.1977), the defendant, on probation since April 28, 1975, was convicted of offenses occurring on or about March 13, 1975 and......
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Com. v. Infante
...Contra State v. Ballensky, 586 N.W.2d 163, 164 (N.D.1998); Smith v. State, 742 So.2d 1146, 1148 (Miss.1999); Demchak v. State, 351 So.2d 1053, 1054 (Fla.Dist.Ct.App.1977); Bell v. State, 656 S.W.2d 502, 505 1. Indeed, a number of jurisdictions have couched revocation on such limited grounds......
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Dearing v. State
...Williams v. United States, 443 F.2d 1151 (5th Cir. 1971). This case is therefore entirely distinguishable from Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977), upon which Dearing heavily relies. Compare also, O'Steen v. State, 261 So.2d 208 (Fla. 1st DCA 1972). In Demchak, the defendan......