Russ v. State
| Citation | 313 So.2d 758 |
| Decision Date | 26 February 1975 |
| Docket Number | No. 44278,44278 |
| Parties | Ronald Ray RUSS, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Louis O. Frost, Jr., Public Defender, and James O. Brecher, Asst. Public Defender, for petitioner.
Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.
Because of an apparent conflict with Hooks v. State, 207 So.2d 459 (Fla.App. 2nd 1968), we initially granted certiorari from the First District Court of Appeal's per curiam affirmance approving a probation revocation on facts which were not sufficient to convince a jury to convict for a criminal offense. 1 The determining factor in Hooks v. State, supra, was the failure of the trial judge to follow the appropriate procedure for disqualification of a judge. The Court, in Hooks, also grounded its reversal on the lack of due process in probationer's revocation hearing. The apparent conflict on that point between Hooks and this case is dispelled by the record in this proceeding because it shows the presiding judge afforded the probationer, through his counsel, an opportunity to testify or to present any evidence on the question of probation revocation. The probationer's counsel in the case sub judice simply declined to present any evidence which was not already before the Court.
The District Court's per curiam affirmance of this cause was in full accordance with our decision in Bernhardt v. State, 288 So.2d 490 (Fla.1974), and the First District's own subsequent decision in Anderson v. State 287 So.2d 322 (Fla.App. 1st 1973). It should be noted that the United States Supreme Court has stated that due process rights are more limited for probationers and parolees than for an individual initially charged with a criminal offense. 2
The petitioner's contention that double jeopardy applies by collateral estoppel is without merit. This is not a second prosecution for the same offense after an acquittal. If it were, a second and separate punishment could be imposed in addition to punishment for the offense previously established for which the petitioner is on probation. A revocation proceeding concerns Conduct which violates the terms of probation for an already-established criminal offense. 'Proof sufficient to support a criminal conviction is not required to support a judge's discretionary order revoking probation.' Bernhardt v. State, supra, 288 So.2d at 501. To apply collateral estoppel, as urged by petitioner, would substantially extend that doctrine not in any way authorized or contemplated by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971); Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971). The ultimate facts necessary to convict for a criminal offense and the ultimate facts necessary to establish a violation of probation are not the same. It is analogous to the decision of the United States Supreme Court in One Lot Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), which held that an acquittal in a criminal case does not collaterally estop the same issue from being tried in a civil case because the burden of proof as well as the elements that must be established differ.
Accordingly, no direct conflict having been demonstrated, the writ is hereby discharged.
It is so ordered.
In 1971, Russ was placed on four years' probation after pleading guilty to receiving stolen property. In 1972, proceedings to revoke the probation were instituted because Russ had been criminally charged with breaking and entering with intent to commit a felony and a robbery. Before the revocation proceedings were heard, Russ was acquitted of the charge by a not guilty verdict of a jury. However, subsequent thereto, the same judge at the jury trial where Russ was acquitted held the revocation hearing without any evidence supportive of the revocation being offered and adjudged that Russ' probation should be revoked. In fact, the judge heard no evidence from the State or Russ at all at the revocation hearing regarding the facts of the said offenses of which Russ was acquitted, but made the following statement:
'I'm afraid that if I had been one of the voting members of the jury I would have found him (Russ) guilty beyond a reasonable doubt, but that's because I knew that Mr. Russ had previously been here.'
The District Court of Appeal, First District, affirmed the revocation per curiam in a short opinion.
It is my opinion based on the record proper that Russ' acquittal by the jury of the...
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