Dunham v. State, 94-3460

Decision Date03 January 1996
Docket NumberNo. 94-3460,94-3460
Citation683 So.2d 507
Parties21 Fla. L. Weekly D89 Robert DUNHAM, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Assistant Attorney General, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.

STONE, Judge.

The judgment and sentence are affirmed. Appellant's probation was revoked, as violated by his moving his residence without permission and by failing to report for several months. Although the evidence presented concerning whether he lived at his designated residence was substantially hearsay, we consider portions of his testimony to be sufficient corroboration. Therefore, we affirm the revocation order.

Appellant's probation officer testified that she went to a residence address furnished by Appellant. Nobody was home, but the officer was told by a third party that Appellant's mother lived there alone. She spoke to Appellant's mother on two occasions and was advised that Appellant did not actually reside at the mother's house, but called to check in often. Appellant testified, insisting that he did reside at his mother's house, but that he also lived in "the streets" and stayed with his sister or other women who he used to support his drug habit.

In Brown v. State, 659 So.2d 1260 (Fla. 4th DCA 1995), this court determined that a probation violation for changing a residence without consent may not be predicated simply on hearsay statements made to a probation officer/witness by residents at the given residence address, even if family members, that the probationer does not live at that residence. We do not further address Brown, as here there is the factor, apparently not present in Brown, of Appellant's own testimony. See McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA 1988); McNealy v. State, 479 So.2d 138 (Fla. 2d DCA 1985). We also note that the trial court made it clear that he was revoking Appellant's probation on either of the charges in the warrant.

Appellant was sentenced, as a habitual offender, to life in prison for kidnapping and to concurrent 30 year sentences for robbery, burglary, and possession of a firearm by a felon. The probation was initially imposed as a split sentence, pursuant to a negotiated plea of 5 years in prison followed by 5 years probation. That sentence was well below the sentencing guidelines. Incident to his initial plea, Appellant acknowledged that in the event of a subsequent violation, he could be sentenced as a habitual offender. Although the prison sentence imposed at that time did not indicate it was a habitual offender sentence, by agreement, a separate order was entered classifying him as a habitual offender and reserving the right to sentence him as such should he violate probation.

We acknowledge conflict with Shaw v. State, 637 So.2d 254 (Fla. 2d DCA), rev. denied, 648 So.2d 724 (Fla.1994). In Shaw, the defendant was also given a split sentence incident to a plea and, as here, subsequently violated probation and was sentenced upon revocation as a habitual offender. In Shaw, the trial court initially specifically imposed the habitual offender sentence only on the probationary portion of the sentence. The court, in Shaw, deemed this an improper "hybrid" sentence because the burden of habitual status was not imposed on the imprisonment portion of the split sentence. See also Pankhurst v. State, 632 So.2d 142 (Fla. 2d DCA 1994); Davis v. State, 623 So.2d 547 (Fla. 2d DCA 1993); Burrell v. State, 610 So.2d 594 (Fla. 2d DCA 1992). However, we can discern no reason for precluding a defendant from agreeing to the type of split sentence condition imposed here, notwithstanding its "hybrid" characteristics. This issue has been resolved adversely to Appellant in King v. State, 648 So.2d 183, 184 (Fla. 1st DCA 1994), rev. granted, 659 So.2d 1087 (Fla.1995); See also Anderson v. State, 637 So.2d 971, 972 n. 1 (Fla. 5th DCA 1994). 1 This court followed King in Walker v. State, 661 So.2d 954 (Fla. 4th DCA 1995).

In King, the First District recognized that by restricting the trial court's ability to impose this type of split sentencing scheme, courts will be less willing to impose the more lenient sentence than might otherwise be imposed, thereby depriving defendants of the benefit of a substantially shorter prison sentence and the second chance represented by...

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4 cases
  • Rowan v. State, 95-03819
    • United States
    • Florida District Court of Appeals
    • 2 Abril 1997
    ...of the probation officer may be upheld if it is based on hearsay coupled with some other non-hearsay evidence. In Dunham v. State, 683 So.2d 507, 508 (Fla. 4th DCA 1996), approved, 686 So.2d 1356 (Fla.1997), the appellate court upheld a revocation of probation based on a similar condition w......
  • Smith v. State
    • United States
    • Florida District Court of Appeals
    • 2 Abril 1997
    ...State, 659 So.2d 1260, 1261-62 (Fla. 4th DCA 1995). There was no other evidence on this portion of the charge. Compare Dunham v. State, 683 So.2d 507 (Fla. 4th DCA 1996), aff'd, 686 So.2d 1356, 22 Fla. L. Weekly S49 (Fla. Jan. 23, 1997). We therefore reverse the finding of a violation of pr......
  • Wehrwein v. State, 98-46
    • United States
    • Florida District Court of Appeals
    • 21 Agosto 1998
    ...General, Daytona Beach, for Appellee. PER CURIAM. AFFIRMED. See Davis v. State, 704 So.2d 681 (Fla. 1st DCA 1997); Dunham v. State, 683 So.2d 507 (Fla. 4th DCA), approved, 686 So.2d 1356 (Fla.1997); McNealy v. State, 479 So.2d 138 (Fla. 2d DCA DAUKSCH and THOMPSON, JJ., and ORFINGER, M., Se......
  • Dunham v. State
    • United States
    • Florida Supreme Court
    • 23 Enero 1997
    ...Assistant Attorney General, Chief, West Palm Beach Bureau, West Palm Beach, for Respondent. PER CURIAM. We review Dunham v. State, 683 So.2d 507 (Fla. 4th DCA 1996), which conflicts with Burrell v. State, 610 So.2d 594 (Fla. 2d DCA 1992). We have jurisdiction pursuant to article V, section ......

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