Savage v. State, No. 2D12–2269.

CourtCourt of Appeal of Florida (US)
Writing for the CourtLaROSE
Citation120 So.3d 619
Docket NumberNo. 2D12–2269.
Decision Date30 August 2013
PartiesHarry SAVAGE, Appellant, v. STATE of Florida, Appellee.

120 So.3d 619

Harry SAVAGE, Appellant,
v.
STATE of Florida, Appellee.

No. 2D12–2269.

District Court of Appeal of Florida,
Second District.

Aug. 30, 2013.


[120 So.3d 621]


Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.


LaROSE, Judge.

Harry Savage appeals an order revoking his sex offender probation and resulting twenty-year prison sentence. He argues that his contact with a child was not a willful and substantial violation of his probationary terms. Competent substantial evidence, however, supports the trial court's finding of a willful and substantial violation. Because the trial court did not abuse its discretion by revoking probation, we affirm. We write to address some possible confusion about the applicable standard of review.

Both the trial court's decision whether to revoke probation and our standard of review involve two steps.

Step One

The trial court must first determine whether the State proved by the greater weight of the evidence that the probationer willfully and substantially violated probation. Del Valle v. State, 80 So.3d 999, 1012 (Fla.2011) (citing State v. Carter, 835 So.2d 259, 261 (Fla.2002)); see also McCumber v. State, 682 So.2d 1214, 1215–16 (Fla. 2d DCA 1996) (citing Davidson v. State, 419 So.2d 728 (Fla. 2d DCA 1982)); Hanania v. State, 855 So.2d 92, 94 (Fla. 2d DCA 2003) (using term “preponderance” of the evidence) (citing Stevens v. State, 823 So.2d 319, 321 (Fla. 2d DCA 2002)); Hightower v. State, 529 So.2d 726, 727 (Fla. 2d DCA 1988) (citing Molina v. State, 520 So.2d 320 (Fla. 2d DCA 1988)); Wheeler v. State, 344 So.2d 630, 632 (Fla. 2d DCA 1977).

Many appellate decisions state that a revocation order is reviewed for an abuse of discretion; in actuality, on appeal, we first assess whether the finding of a willful and substantial violation is supported by competent substantial evidence. See Cerny v. State, 65 So.3d 609, 613–14 (Fla. 2d DCA 2011) (Altenbernd, J., concurring specially); Hicks v. State, 890 So.2d 459, 460 (Fla. 2d DCA 2004); Glasier v. State, 849 So.2d 444, 445 (Fla. 2d DCA 2003) (affirming revocation where competent substantial evidence supported trial court's finding of willful and substantial violation).

The term “competent substantial evidence” does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. “Substantial” requires that there be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, “tending to prove”) as to each essential element of the offense charged.

Dunn v. State, 454 So.2d 641, 649 n. 11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially); accord Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996).


In De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957), the supreme court defined

[120 So.3d 622]

competent substantial evidence as “such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” The supreme court stated that “the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” Id. The competent substantial evidence standard defers to the trial court's judgment because the trial court is in the best position “ ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.’ ” In re Estate of Sterile, 902 So.2d 915, 922 (Fla. 2d DCA 2005) (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)). Our aseptic record cannot replicate what the trial court observed. Thus, we assess the record evidence from which the trial court reached its conclusion for its sufficiency, not its weight. See Blackwood v. State, 946 So.2d 960, 973 (Fla.2006) (holding review of whether evidence is competent and substantial tests only its legal sufficiency and not its weight).

The evidence must meet technical requirements to support a finding that a violation occurred. See, e.g., C.B.H. v. State, 117 So.3d 450 (Fla. 2d DCA 2013) (reversing revocation where only evidence of violation was hearsay, which, without nonhearsay evidence, was insufficient); Cerny, 65 So.3d at 613 (holding that “the circuit court erred in revoking Mr. Cerny's probation based on that alleged new law violation” where no evidence supported trial court's finding that a battery occurred); Gaddy v. State, 23 So.3d 1258, 1259 (Fla. 2d DCA 2009) (holding that...

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41 practice notes
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • 25 Marzo 2020
    ...under legal rules of evidence" and is substantial when it is "material" and has a "definite probative value." Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (quoting Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially)); see also Lonergan v......
  • Turner v. State, Case No. 2D16-3474
    • United States
    • Court of Appeal of Florida (US)
    • 19 Diciembre 2018
    ..."there was no evidentiary hearing held to prove the new law violations by ‘the greater weight of the evidence.’ " See Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013) (observing that at a revocation hearing the State must "prove[ ] by the greater weight of the evidence that the probat......
  • Nieves v. State, Case No. 2D18-613
    • United States
    • Court of Appeal of Florida (US)
    • 2 Agosto 2019
    ...find, by a preponderance of the evidence, a willful and substantial violation of one of the conditions of his probation. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013). Where the alleged violation is of a condition prohibiting new law violations, the question is whether a preponder......
  • Thompson v. State, No. 1D17–2751
    • United States
    • Court of Appeal of Florida (US)
    • 17 Mayo 2018
    ...221 So.3d at 733–34. We review the trial court's disposition for an abuse of discretion. Del Valle , 80 So.3d at 1009 ; Savage v. State , 120 So.3d 619, 621–24 (Fla. 2d DCA 2013) (separating the CSE standard for willfulness from abuse of discretion as to ultimate revocation).CSE of Willfuln......
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41 cases
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • 25 Marzo 2020
    ...of evidence" and is substantial when it is "material" and has a "definite probative value." Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (quoting Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially)); see also Lon......
  • Turner v. State, Case No. 2D16-3474
    • United States
    • Court of Appeal of Florida (US)
    • 19 Diciembre 2018
    ...was no evidentiary hearing held to prove the new law violations by ‘the greater weight of the evidence.’ " See Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013) (observing that at a revocation hearing the State must "prove[ ] by the greater weight of the evidence that the pro......
  • Nieves v. State, Case No. 2D18-613
    • United States
    • Court of Appeal of Florida (US)
    • 2 Agosto 2019
    ...find, by a preponderance of the evidence, a willful and substantial violation of one of the conditions of his probation. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013). Where the alleged violation is of a condition prohibiting new law violations, the question is whether a preponder......
  • Thompson v. State, No. 1D17–2751
    • United States
    • Court of Appeal of Florida (US)
    • 17 Mayo 2018
    ...221 So.3d at 733–34. We review the trial court's disposition for an abuse of discretion. Del Valle , 80 So.3d at 1009 ; Savage v. State , 120 So.3d 619, 621–24 (Fla. 2d DCA 2013) (separating the CSE standard for willfulness from abuse of discretion as to ultimate revocation).CSE of Willfuln......
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