Miffin v. State
| Decision Date | 22 May 2009 |
| Docket Number | No. 2D08-2550.,2D08-2550. |
| Citation | 19 So.3d 377 |
| Parties | Sharif Shakhan MIFFIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
Sharif Miffin seeks review of an order revoking his probation in three lower court cases. Because the trial court properly found that Miffin committed the new law violation of grand theft motor vehicle, we affirm the revocation of probation and resulting sentences. However, we remand for the trial court to strike the remaining findings of violations as improperly based solely on hearsay.
A probation revocation hearing was held on May 2, 2008. The trial court found that Miffin violated his probation by failing to make a full and truthful report (Condition 1), changing residence or employment without consent (Condition 3), committing the new law violation of grand theft motor vehicle (Condition 8), and failing to comply with all instructions of his probation officer (Condition 10). Miffin was sentenced to 20 years in prison on each of the three cases, all sentences to run concurrently.
We review a trial court's revocation of probation under an abuse of discretion standard. State v. Carter, 835 So.2d 259, 262 (Fla.2002). The State must prove violations of probation by the greater weight of the evidence. Dean v. State, 948 So.2d 1042, 1044 (Fla. 2d DCA 2007). While hearsay is admissible to help establish a violation, "a revocation of probation finding cannot be based solely upon hearsay testimony." Id.
The State concedes, and the record confirms, that the violations of probation for failure to make a full and truthful report (Condition 1) and changing employment without consent (Condition 3) are based solely on hearsay. Accordingly, the State failed to meet its burden of proof as to these alleged violations and the trial court abused its discretion by finding that Miffin violated Conditions 1 and 3.
Similarly, the allegation that Miffin failed to follow his probation officer's special instruction to report to the probation office (Condition 10) is based solely on hearsay evidence. The probation officer testified that he attempted three times to contact Miffin at his approved residence but that Miffin was not home on any of the three visits. The probation officer left a message with Miffin's cousin that if Miffin did not report to the office he would obtain a warrant for Miffin's arrest, and Miffin failed to report. The cousin did not testify at the probation hearing, and no evidence was presented that Miffin ever received the instruction from his probation officer. Thus, the State failed to prove a violation of Condition 10 and the trial court abused its discretion in finding a violation of that condition.
As to Condition 8, grand theft of a motor vehicle, section 812.014(1), Florida Statutes (2007), states:
A person commits theft if he or she knowingly...
To continue reading
Request your trial
-
Savage v. State
...that violation occurred was hearsay). Equally important, the evidence must demonstrate willfulness. See, e.g., Miffin v. State, 19 So.3d 377, 378 (Fla. 2d DCA 2009) (holding trial court “abused its discretion” in finding violation where State presented no evidence that defendant ever receiv......
-
Green v. State, 2D08-2533.
...Green from using or possessing illegal drugs), and these violations were sufficient to revoke probation. See, e.g., Miffin v. State, 19 So.3d 377 (Fla. 2d DCA 2009) (directing trial court to strike findings that defendant had violated conditions 1, 3, and 10 of probation but affirming revoc......
-
C.B.H. v. State
...a probation violation, “ ‘a revocation of probation finding cannot be based solely upon hearsay testimony.’ ” Miffin v. State, 19 So.3d 377, 378 (Fla. 2d DCA 2009) (quoting Dean v. State, 948 So.2d 1042, 1044 (Fla. 2d DCA 2007)). C.B.H. correctly asserts that the trial court revoked his pro......
-
Mathis v. State, 2D09-1117.
...burglary and remand the case for the trial court to strike its finding regarding the violation of condition five. See Miffin v. State, 19 So.3d 377, 378 (Fla. 2d DCA 2009) ("We review a trial court's revocation of probation under an abuse of discretion standard.").1 The trial court found th......
-
Judgment and sentence
...and Sentence: Probation and Community Control 7.4 charge of failing to comply with a probation officer’s instruction. Miffin v. State, 19 So. 3d 377 (Fla. 2d DCA 2009) When the court could not impose incarceration at the original sentencing as a result of not obtaining a proper waiver of co......