McCrary v. State, 84-2030
| Decision Date | 06 March 1985 |
| Docket Number | No. 84-2030,84-2030 |
| Citation | 10 Fla. L. Weekly 603,464 So.2d 670 |
| Parties | 10 Fla. L. Weekly 603 Tommy Lee McCRARY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and John T. Kilcrease, Jr., Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
BOARDMAN, EDWARD F., (Ret.) Judge.
Appellant Tommy Lee McCrary challenges the trial court's order revoking his probation after finding that he had violated conditions two and eight of his probation by failing to pay the monthly cost of his supervision and failing to comply with his probation officer's instructions. McCrary contends that the trial court erred in rendering its order of revocation when the state presented no evidence concerning his ability to comply with a financial condition of probation and when only hearsay evidence established his noncompliance with his probation officer's instructions. We agree with both contentions and reverse.
The affidavit of violation filed against McCrary charged that he failed to contribute $10 each month toward the cost of his supervision for a seven-month period and, thus, was $70 in arrears on this obligation as of January 5, 1978. The affidavit further alleged that appellant failed to comply with his probation officer's instruction to report to the offender rehabilitation office in North Fort Myers by January 6, 1978, instead remaining at large with his whereabouts unknown until apprehended on June 6, 1984.
The state concedes that it presented no evidence concerning appellant's financial ability to pay his costs of supervision, notwithstanding this court's holding in Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). In Coxon, this court determined that "probation cannot be revoked solely for violation of conditions requiring payment without evidence that the probationer is able to make payment." 365 So.2d at 1068. Accord Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978). The state attempts to excuse its failure to present the requisite proof, however, by arguing that appellant's flight prevented it from establishing his economic status during his months of hiding. Thus, according to the state, it should not be penalized for its inability to prove facts shielded from its knowledge as a result of appellant's wrongful conduct. We find this argument particularly unpersuasive in light of the charging instrument's allegation and the state's evidence establishing that McCrary failed to pay the cost of his supervision for seven months prior to the date of his alleged flight. Thus, it appears clear that appellant's conduct did not hamper or defeat the state's ability to demonstrate his...
To continue reading
Request your trial
-
State v. Reyes
...as a business entry, a probation department report detailing unsuccessful attempts to find the probationer). See, also, McCrary v. State, 464 So.2d 670 (Fla.App.1985); United States v. Burkhalter, 588 F.2d 604 (8 Cir.1978); Anaya v. State, 96 Nev. 119, 606 P.2d 156 (1980); United States v. ......
-
Garcia v. State, 96-02556
...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 ......
-
McCarrick v. State, 88-00531
...may have been admissible hearsay, a question not reached here, revocation was improper absent nonhearsay evidence. McCrary v. State, 464 So.2d 670 (Fla.2d DCA 1985). Reversal of an order revoking probation on the ground that it was based solely on hearsay does not ordinarily bar a second re......
-
Grant v. State, 92-2632
...only by plainly insufficient hearsay evidence that he had not. See Frazier v. State, 587 So.2d 660 (Fla. 3d DCA 1991); McCrary v. State, 464 So.2d 670 (Fla. 2d DCA 1985); Curry v. State, 379 So.2d 140 (Fla. 4th DCA 1980). Accordingly, the order below revoking probation is ...