Hartzog v. State, 2D01-2655.
| Decision Date | 10 May 2002 |
| Docket Number | No. 2D01-2655.,2D01-2655. |
| Citation | 816 So.2d 774 |
| Parties | Royce HARTZOG, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Jennifer Y. Fogle, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
Royce Hartzog challenges an order revoking his probation and sentencing him to 52.5 months in prison, followed by seven years' probation. We reverse because the State failed to meet its burden of proving a willful and substantial violation of probation.
Mr. Hartzog was on probation for the offense of aggravated battery. On March 21, 2001, an affidavit was filed alleging that Mr. Hartzog had violated conditions 2 and 36 of his probation. Following an evidentiary hearing, the trial court found that Mr. Hartzog had violated those conditions and revoked his probation.
Mr. Hartzog contends that the violation of condition 2 (changing his residence without first obtaining the consent of his supervising probation officer) must be reversed because the revocation was based solely on hearsay evidence, which was insufficient to establish a willful and substantial violation. He contends that the violation of condition 36 (failure to pay full monthly amount of restitution for four months) must also be reversed because the State failed to show that Mr. Hartzog willfully refused to pay his restitution.
At the evidentiary hearing, Mr. Huntley, the probation officer, testified that Mr. Hartzog was not living at his approved residence. Mr. Huntley made several home visits but never found Mr. Hartzog at the residence. Mr. Huntley testified that Mr. Hartzog's mother told him that "she did not know [where he was living now]." The mother did not testify. Mr. Hartzog testified that he was living at the approved residence but was at work when the probation officer made the home visits.
The only testimony to directly support the violation was the mother's hearsay statement. Hearsay is admissible at a probation revocation hearing, but "a revocation of probation may not be based solely upon hearsay evidence." Rowan v. State, 696 So.2d 842, 843 (Fla. 2d DCA 1997). "A revocation of probation based on changing a residence without obtaining consent of the probation officer may be upheld if it is based on hearsay coupled with some other non-hearsay evidence." 696...
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Del Valle v. State
...probationer has the ability to pay restitution but willfully refuses to do so.”) (citing Stephens, 630 So.2d at 1090; Hartzog v. State, 816 So.2d 774 (Fla. 2d DCA 2002)). Section 948.06(5), however, expresses with indisputable clarity the Legislature's intent to shift the burden of proving ......
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Ewell v. State, 5D02-3067.
...2d DCA 2002)(no willful and substantial violation where defendant cannot afford to pay for sex offender treatment); Hartzog v. State, 816 So.2d 774 (Fla. 2d DCA 2002)(no willful and substantial violation; state failed to show defendant had ability to pay restitution); Robinson v. State, 773......
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Robaldo v. State, Case No. 2D02-4021 (FL 7/30/2004), Case No. 2D02-4021.
...may be upheld if it is based on hearsay evidence coupled with some other nonhearsay evidence. See id.; see also Hartzog v. State, 816 So. 2d 774, 775-76 (Fla. 2d DCA 2002); Tornas v. State, 742 So. 2d 472, 473 (Fla. 2d DCA 1999); Cito v. State, 721 So. 2d 1192, 1192 (Fla. 2d DCA 1998); Garc......
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Mabry v. FLORIDA PAROLE COM'N
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