Smith v. State

Decision Date02 April 1997
Docket NumberNo. 96-0267,96-0267
Citation690 So.2d 733
Parties22 Fla. L. Weekly D844 Brian SMITH, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Kevin J. Kulik of Kevin J. Kulik, P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Patricia Ann Ash, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

The trial court found appellant, Brian Smith, to be in violation of his probation for changing his residence without the consent of his probation officer and attempted burglary. The only evidence of a change of residence was the probation officer's testimony that Smith's grandmother had said that Smith moved in with his girlfriend. Although hearsay is admissible in revocation proceedings, a court cannot revoke probation based solely on a hearsay statement by a family member to a probation officer that the probationer does not live at a certain address. Brown v. State, 659 So.2d 1260, 1261-62 (Fla. 4th DCA 1995). There was no other evidence on this portion of the charge. Compare Dunham v. State, 683 So.2d 507 (Fla. 4th DCA 1996), aff'd, 686 So.2d 1356, 22 Fla. L. Weekly S49 (Fla. Jan. 23, 1997). We therefore reverse the finding of a violation of probation on that ground.

As to the other violation, we find no abuse of discretion. See Bernhardt v. State, 288 So.2d 490, 501 (Fla.1974). Because we cannot tell from this record whether the court would have revoked probation or whether Smith's sentence would have been the same had the court found only one violation, we remand the case to the trial court. Brown, 659 So.2d at 1262. On remand, if the court determines that revocation is still appropriate, it must enter a written order of revocation. E.g., Horne v. State, 675 So.2d 247 (Fla. 4th DCA 1996).

FARMER, STEVENSON and GROSS, JJ., concur.

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4 cases
  • Webb v. State
    • United States
    • Florida District Court of Appeals
    • 7 January 2015
    ...residence was hearsay and could not support revocation of probation without additional non-hearsay evidence); Smith v. State, 690 So.2d 733, 734 (Fla. 4th DCA 1997) (testimony of probation officer that probationer's grandmother told him that probationer no longer lived at residence, without......
  • Garcia v. State, 96-02556
    • United States
    • Florida District Court of Appeals
    • 24 October 1997
    ...approved residence was hearsay and could not support revocation of probation without additional non-hearsay evidence); Smith v. State, 690 So.2d 733 (Fla. 4th DCA 1997) (concluding that testimony of probation officer that probationer's grandmother told him that probationer no longer lived a......
  • Santiago v. State, 4D04-264.
    • United States
    • Florida District Court of Appeals
    • 15 December 2004
    ...to establish a violation of a condition of probation." Kiess v. State, 642 So.2d 1141, 1142 (Fla. 4th DCA 1994). See Smith v. State, 690 So.2d 733, 734 (Fla. 4th DCA 1997); Brown v. State, 659 So.2d 1260, 1261-62 (Fla. 4th DCA At bar, the trial court heard hearsay evidence consisting of sec......
  • C.B.H. v. State
    • United States
    • Florida District Court of Appeals
    • 10 July 2013
    ...longer lived there was hearsay and, without nonhearsay evidence, was insufficient to support probation revocation); Smith v. State, 690 So.2d 733, 734 (Fla. 4th DCA 1997) (concluding same); see also Kipp v. State, 657 So.2d 931, 932 (Fla. 2d DCA 1995) (concluding that testimony of officer t......

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