Laing v. State

• Citation: 200 So.3d 166
• Decision Date: 24 June 2016
• Docket Number: No. 5D15–3978.,5D15–3978.
• Parties: Kevin R. LAING, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

200 So.3d 166

Kevin R. LAING, Appellant,

v.STATE of Florida, Appellee.

No. 5D15–3978.

District Court of Appeal of Florida, Fifth District.

June 24, 2016.

Robert L. Sirianni, Jr. and Matthew R. McLain, of Brownstone, P.A., Winter Park, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent–Tripp, Assistant Attorney General, Daytona Beach, for Appellee.

EDWARDS, J.

Kevin R. Laing appeals his conviction for violation of probation based upon his alleged submission of false driving logs. Laing argues that his conviction should be reversed because it was based solely on hearsay evidence. We agree and reverse.

In 2007, Laing pleaded guilty as charged to sexual battery, exposure of sexual organs, and battery. He was adjudicated guilty and sentenced to fifteen years of supervised sex offender probation. In July 2015, the State filed an affidavit alleging that he violated the terms and conditions of his probation by falsifying his required monthly driving logs, failing to properly document his driving destinations, and lying to his probation officer about those same logs. At the violation of probation hearing, Probation Officer McDonough testified that he advised Laing that the terms and conditions of his probation required Laing to maintain and submit accurate monthly driving logs. Laing was also required to wear a 3M GPS ankle bracelet, which was supposed to track his location and movements.

A 3M representative testified that the 3M electronic monitoring system consisted of an ankle bracelet, worn by Laing, and a small transmitter, similar to a cell phone, which would send signals to 3M's monitoring equipment. The monitoring equipment used GPS to record Laing's location and movements. The 3M representative indicated that he provided the State and Laing with login information that would allow them to access Laing's locations on specific dates and times. The State did not prepare an exhibit identifying Laing's location with the data reported by the 3M electronic monitoring system or attempt to introduce a printout of the 3M GPS data as a business record.

Probation Officer Patty Ciuzio testified that she assumed supervision of Laing after McDonough. When she reviewed Laing's driving logs, she learned that none of Laing's entries matched the reported 3M GPS data. Officer Ciuzio admitted that she had no personal knowledge of Laing's whereabouts and solely relied upon the 3M GPS data.

Laing denied any wrongdoing and testified that his driving logs were accurate. At the close of the evidence, Laing moved to dismiss the charges because hearsay was the sole basis to prove that he falsified his driving logs. The court denied his motion and convicted Laing of violating the terms and conditions of his probation by falsifying his driving logs for June 2015 through July 2015. The court dismissed the other alleged violations. Laing's probation was revoked and he was sentenced to 180 months in prison with credit for 200 days of time served.

Probation may be revoked only if there is a willful violation of a substantial condition of probation. Lawson v. State, 969 So.2d 222, 230 (Fla.2007). The State must...