Miller v. State, 94-1455
| Decision Date | 05 October 1995 |
| Docket Number | No. 94-1455,94-1455 |
| Citation | 661 So.2d 353 |
| Parties | 20 Fla. L. Weekly D2241 Ovid MILLER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
The state seeks rehearing of our opinion of April 12, 1995, wherein we reversed the judgment based on our determination that the revocation of probation was based solely on hearsay. In its motion for rehearing, the state points to testimony in the record which it contends does not constitute hearsay. Upon consideration of the State's motion for rehearing and our review of the record, we grant rehearing, withdraw the opinion dated April 12, 1995, and substitute the following opinion affirming the order of the trial court:
Defendant appeals his conviction for a violation of probation resulting in a sentence of one year incarceration. The trial court found a violation of probation by defendant's failure to attend sex offender meetings. We affirm because the record reveals that the revocation of probation was based on an acceptable combination of hearsay and non-hearsay evidence.
In October 1992, defendant pled guilty to lewd assault and was sentenced to eighteen months probation. One of the conditions of probation required defendant to successfully complete treatment recommended by his therapist. It was this condition which the trial court found defendant to have violated by failing to attend sex offender meetings as part of his treatment.
The testimony presented at the probation revocation hearing included that of the initial therapist who, after evaluating defendant on three separate occasions, determined that defendant needed treatment as a sex offender in the form of group therapy sessions with other sex offenders. However, because this treatment program required defendant to pay for the sessions and because defendant was unemployed, the therapist referred him to Sex Offenders Anonymous to attend a cost-free support group program which met at Glenbeigh Hospital, a private hospital for treating addictions. Upon obtaining employment, defendant would be required to continue in this support group and begin treatment sessions.
The state contended that defendant did not attend these meetings at Glenbeigh because the meetings were cancelled in December 1993. The probation officer testified that after she became suspicious that the signature on the attendance forms looked like the signature on defendant's employment search forms, she called the hospital and learned that the meetings had been cancelled.
The state presented the testimony of an accountant, Dorothy Payne, who had been employed by Glenbeigh Hospital for seven years, the length of time that the hospital had been open. In addition to her duties as an accountant, Payne sat at the front desk from 12:00 to 12:30 p.m. Because the facility is a locked unit, no one can enter except through the front desk where meeting participants would be required to sign in. Payne testified that sex offender meetings had been held twice a week from 12:00 to 1:00 p.m. and that the participants would come in between 12:00 and 12:15 p.m. to sign in. She testified that these meetings ceased in early December when the corporate offices moved from Jupiter to the hospital because there was no longer space available for the sex offender meetings. As the accountant, Payne had direct knowledge that there had been no charge for the meetings and thus the hospital did not keep documentation of the meetings.
A thorough review of the accountant's testimony reveals that her knowledge that the meetings were no longer held at the facility was not based on hearsay but on her own direct observations that the corporate offices had taken over the meeting rooms and that the sign-ins for the meetings did not continue past December. Although she never attended the meetings nor had written documentation that the meetings had ceased, Payne's observations based on both her position as accountant and her additional duties at the front desk provided competent, indirect evidence that the meetings were no longer held at Glenbeigh and that defendant had not been attending the meetings as he had represented to the probation officer and to the trial court.
Defendant testified categorically that he attended the support group...
To continue reading
Request your trial
-
Cannon v. Jones
...of the evidence that a defendant committed the subject offense in order for probation to be violated. SeeMiller v. State, 661 So. 2d 353, 354 (Fla. 4th DCA 1995). As it is a lesser standard than what is required to prove a criminal charge, a probationer's term of probation may be revoked re......
-
Del Valle v. State
...of the evidence that the probationer committed a particular offense that justifies probation revocation. See Miller v. State, 661 So.2d 353, 354 (Fla. 4th DCA 1995). Furthermore, hearsay evidence is admissible at probation revocation hearings, see Sylvis v. State, 916 So.2d 915 (Fla. 5th DC......
-
Suggs v. Fla. Parole Comm'n
...state need only demonstrate by a preponderance of the evidence that the defendant committed the subject offense. See Miller v. State, 661 So.2d 353, 354 (Fla. 4 DCA 1995). As that is a lesser standard than is required to prove the criminal charge, a releasee's term of release may be revoked......
-
Hall v. State, 98-1227.
...hearsay is corroborated by other non-hear-say evidence. See e.g., Thomas v. State, 711 So.2d 96 (Fla. 4th DCA 1998); Miller v. State, 661 So.2d 353 (Fla. 4th DCA 1995); Corona v. State, 642 So.2d 667 (Fla. 3d DCA 1994); Mathis v. State, 545 So.2d 483 (Fla. 1st DCA 1989). We conclude, howeve......