McNealy v. State, 85-504
| Decision Date | 16 October 1985 |
| Docket Number | No. 85-504,85-504 |
| Citation | 479 So.2d 138,10 Fla. L. Weekly 2377 |
| Parties | 10 Fla. L. Weekly 2377 Claude McNEALY, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
Appellant appeals the trial court's order revoking his probation and his sentence of three-and-one-half years in prison. We affirm.
He raises four points on appeal:
I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT APPELLANT HAD VIOLATED PROBATION BY CHANGING ADDRESS WITHOUT PERMISSION, WHERE THE ONLY EVIDENCE PRESENTED WAS HEARSAY?
II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT APPELLANT HAD VIOLATED PROBATION BY FAILING TO PAY THE COSTS OF SUPERVISION, WHEN THERE WAS NO SHOWING SUCH FAILURE TO PAY WAS WILLFUL OR THAT APPELLANT HAD THE ABILITY TO PAY?
III. WHETHER THE TRIAL COURT ERRED IN SENTENCING UNDER THE GUIDELINES WITHOUT OBTAINING AN AFFIRMATIVE REQUEST BY APPELLANT?
IV. WHETHER THE TRIAL COURT ERRED IN AUTOMATICALLY ENHANCING A GUIDELINE SENTENCE BY ONE CELL BECAUSE OF A VIOLATION OF PROBATION, WHERE SUCH ACTION CONSTITUTED A RETROACTIVE APPLICATION OF AMENDED RULE 3.701(d)(14)?
The attorney general, on behalf of appellee, conceded appellant's first point by stating that the alleged violation of condition (3) of appellant's probation "was based solely on hearsay evidence and cannot be sustained." That concession is improper, ill-advised, and we refuse to accept it.
Condition (3) of appellant's probation required appellant not to change addresses without permission. Appellant's probation officer testified that she went to appellant's residence on several occasions and could never find him. On her last visit there, appellant's brother informed her that appellant no longer lived there and had no idea where he was. The brother's statement is hearsay, but the probation officer's testimony that she went to his place of residence several times and could never find him is not hearsay. Neither is her testimony that when she went to jail to interview him after he turned himself in and asked him why he left and where he had been, appellant informed her he had just been messing around Lakeland. When asked where he had been living, he "just said in Lakeland." Hearsay is admissible in a revocation hearing. The well-established rule is that revocation cannot be based on hearsay alone. Clayton v. State, 422 So.2d 83 (Fla. 2d DCA 1982); Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976); Brown v. State, 338 So.2d 573 (Fla. 2d DCA 1976). In this case, revocation of probation for violation of condition (3) was not based solely on hearsay.
There is evidence that appellant was employed from time to time during his probation, yet he failed to ever pay any of the costs of supervision. Appellant's second point is, therefore, not well taken.
Appellant's attorney not only requested that a guidelines scoresheet be prepared, he objected to the first one and requested that a corrected scoresheet be...
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Dunham v. State, 94-3460
...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 Appe......
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McPherson v. State, 87-1830
...appellant violated his probation by moving from his approved residence without the permission of his probation officer. McNealy v. State, 479 So.2d 138 (Fla. 2d DCA 1985); see also Bass v. State, 473 So.2d 1367 (Fla. 1st DCA Count IV charged that appellant violated his probation by committi......
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S.M. v. State
...error. While “[h]earsay is admissible in a revocation hearing,” the “revocation cannot be based on hearsay alone.” McNealy v. State, 479 So.2d 138, 139 (Fla. 2d DCA 1985). Here, the JPO testified that the juvenile never reported to her and that she was court-ordered to go to school. This is......
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Rowan v. State, 95-03819
...on a similar condition where the probationer admitted to the probation officer that he was living "in the streets." In McNealy v. State, 479 So.2d 138 (Fla. 2d DCA 1985), and McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA 1988), the defendants admitted they were living elsewhere, and furt......