RUISE v. State of Fla.
| Citation | 43 So.3d 885 |
| Decision Date | 07 September 2010 |
| Docket Number | No. 1D09-5520.,1D09-5520. |
| Parties | Casey RUISE, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Nancy A. Daniels, Public Defender and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General; Samuel A. Perrone and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, for Appellee.
Appellant seeks review of the revocation of his probation and resulting sentence. He argues that the trial court erred in revoking his probation 1) based solely on global positioning system (GPS) data from his electronic monitoring device, and 2) because the alleged violation was not willful and substantial. We affirm.
In May 2008, Appellant was convicted of lewd or lascivious battery on a child and sentenced to one year in the county jail followed by 12 years of sex offender probation with the first year being served on community control. In July 2009, less than three months after Appellant was released on community control, an affidavit of violation was filed alleging that on June 28, 2009, Appellant was away from his approved residence in violation of his community control conditions requiring him to comply with the instructions of his probation officer and to remain confined to his residence. The only evidence presented by the state in support of the allegation that Appellant was away from his residence on June 28, 2009, was GPS data from the monitoring device that Appellant was required to wear as a condition of his community control.
As he did below, Appellant argues on appeal that the GPS data was inadmissible hearsay and thus insufficient to support the finding that Appellant violated his probation. The state, in turn, argues that the GPS data was admissible under the business records exception to the hearsay rule.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat (2009). The GPS data is clearly hearsay because it purports to show Appellant's locations on June 28, 2009, and it is being offered for the truth of the matter asserted, i.e., to prove that Appellant was in the locations away from his residence reflected in the GPS data.
Hearsay is admissible in a probation or community control violation proceeding, but probation or community control may not be revoked solely on the basis of hearsay evidence. See Smith-Curles v. State, 24 So.3d 702, 702-03 (Fla. 1st DCA 2009). Revocation may, however, be based solely upon hearsay evidence that falls within an exception to the hearsay rule. See Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998) ().
The business records exception to the hearsay rule provides:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.
§ 90.803(6)(a), Fla. Stat. The state had the burden to lay the requisite foundation for admission of the GPS data under this hearsay exception. See Yisrael v. State, 993 So.2d 952, 956 (Fla.2008) (); Pickrell v. State, 301 So.2d 473, 474 (Fla. 2d DCA 1974) () (...
To continue reading
Request your trial
-
State v. Jackson
...the State failed to establish a proper foundation to verify the authenticity and trustworthiness of the data. Citing Ruise v. Florida, 43 So.3d 885 (Fla.Dist.Ct.App.2010) (holding a sufficient foundation was laid to admit tracking data from a defendant's electronic monitoring device where a......
-
R.L.G. v. State
...DCA 2016) ; Laing v. State, 200 So. 3d 166 (Fla. 5th DCA 2016) ; Edwards v. State, 60 So. 3d 529 (Fla. 2d DCA 2011) ; Ruise v. State, 43 So. 3d 885 (Fla. 1st DCA 2010).14 While I agree with R.L.G. that this is an issue of first impression for this Court, I respectfully disagree with his con......
-
Edwards v. State
...to revoke. Cuciak v. State, 410 So.2d 916, 918 (Fla.1982). We contrast the facts of this case with those described in Ruise v. State, 43 So.3d 885 (Fla. 1st DCA 2010), in which the circuit court found a violation of community control based on GPS data compiled by a monitoring company. There......
-
Channell v. State, 1D15–3859.
...proceeding, but probation or community control may not be revoked solely on the basis of hearsay evidence.” Ruise v. State, 43 So.3d 885, 886–87 (Fla. 1st DCA 2010) (citing Smith–Curles v. State, 24 So.3d 702, 702–03 (Fla. 1st DCA 2009) ). “Revocation may, however, be based solely upon hear......
-
Judgment and sentence
...records so long as the proper predicate is laid. A VOP based solely on evidence from the GPS tracking devise is lawful. Ruise v. State, 43 So. 3d 885 (Fla. 1st DCA 2010) The court errs in finding a violation of probation based on a curfew violation where the evidence shows that defendant wa......
-
Evidence
...records so long as the proper predicate is laid. A VOP based solely on evidence from the GPS tracking devise is lawful. Ruise v. State, 43 So. 3d 885 (Fla. 1st DCA 2010) Defendant was charged with killing his girlfriend. At trial, the court admitted an e-mail written by an employee of the a......