Garcia v. State, 96-02556

• Decision Date: 24 October 1997
• Docket Number: No. 96-02556,96-02556
• Parties: 22 Fla. L. Weekly D2481 Erik GARCIA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 607

701 So.2d 607

22 Fla. L. Weekly D2481

Erik GARCIA, Appellant, v. STATE of Florida, Appellee.

No. 96-02556.

District Court of Appeal of Florida,

Second District.

Oct. 24, 1997.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

The appellant, Erik Garcia, challenges an order revoking his probation. We reverse because the State has not met its burden of proving willful and substantial violations of probation by the greater weight of the evidence.

The State charged appellant with two counts of battery on a law enforcement officer and one count of obstructing or opposing an officer with violence. Appellant pleaded guilty to the charges and the trial court adjudicated him guilty and imposed two years of probation on each count to run concurrently. Condition number three of the probation order stated: "You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer." Condition number nine stated: "You will promptly and truthfully answer all inquiries directed to you by the Court or your officer, and allow the officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you." Additionally, the trial court ordered appellant to enter and complete an anger management program as a special condition of probation.

On April 5, 1996, the State filed an affidavit of violation of probation alleging that appellant violated condition numbers three and nine. Regarding condition number three, the affidavit alleged that appellant moved from his approved residence without the prior knowledge or consent of his probation officer. Concerning condition number nine, the affidavit alleged that appellant failed to comply with his probation officer's instructions to report to the Psychological Management Group (PMG) on three separate dates. The trial court held a probation revocation hearing on May 30, 1996.

At the hearing, Paul Wells, appellant's probation officer, testified that he visited appellant's approved residence on March 5, 1996, and discovered the door was open but no person was inside the residence. The probation officer further testified that a person who identified himself as the apartment manager told him that appellant did not live at the approved residence. Wells admitted that he did not write down the name of the apartment manager. The probation officer also testified that he instructed appellant to attend three scheduled appointments at PMG. He stated that appellant failed to appear for the first two scheduled appointments and arrived late for the third appointment. Wells conceded that his knowledge of appellant's attendance was based solely on communications from PMG. In this regard, over the objection of defense counsel, the State introduced correspondence from PMG concerning the instances when appellant failed to appear, or arrived late, for the appointments.

Appellant testified that he lived with his wife and child at the approved residence. He further stated that he did not attend the first appointment with PMG because he had no transportation. However, he telephoned his probation officer and rescheduled the appointment. When he arrived at PMG for the second appointment, the staff would not evaluate him because he did not have enough money to pay the required fee. Finally, appellant indicated he was unable to pay the necessary fee for the third appointment because he became unemployed as a result of an arrest. After the hearing, the trial court found that appellant violated condition numbers three and nine. As a result, the trial court revoked appellant's probation and imposed two years in prison for each offense to run concurrently.

A trial court may revoke probation if a probationer violates his or her probation "in a material respect." § 948.06(3), Fla.Stat. (1995). A violation triggering a revocation of probation must be willful and substantial. See Hightower v. State, 529 So.2d 726 (Fla. 2d DCA 1988). The State has the burden of proving by the greater weight of the evidence that the probationer's actions amounted to a willful and substantial violation of a condition of probation. See Roseboro v. State, 528 So.2d 499 (Fla. 2d DCA 1988). Although hearsay is admissible in evidence at a probation revocation hearing, a revocation of probation may not be based solely upon hearsay evidence. See Kipp v. State, 657 So.2d 931 (Fla. 2d DCA 1995); McCrary v. State, 464 So.2d 670 (Fla. 2d DCA 1985).

In the instant case, the State failed to present sufficient evidence that appellant changed his residence without the consent of his probation officer in violation of condition number three. The evidence supporting a violation of this condition consisted of the probation officer's testimony that appellant was absent during a single visit to the approved residence, and that an unnamed person identifying himself as the apartment manager told Wells that appellant did not live at the approved residence. The declaration of the apartment manager is hearsay and cannot support a revocation of probation without some other sufficient non-hearsay evidence. See Rowan v. State, 696 So.2d 842 (Fla. 2d DCA 1997) (holding that testimony of probation officer that landlord told him probationer moved from approved residence was hearsay and could not support revocation of probation without additional non-hearsay evidence); Smith v. State, 690 So.2d 733 (Fla. 4th DCA 1997) (concluding that testimony of probation officer that probationer's grandmother told him that probationer no longer lived at residence, without non-hearsay evidence, was insufficient to support probation revocation). The only non-hearsay evidence relating to condition number three was the probation officer's observation during one visit to the approved residence. This one-time...