Staley v. State, No. 2D02-857

• Decision Date: 30 July 2003
• Docket Number: No. 2D02-857, No. 2D02-1325.
• Citation: 851 So.2d 805
• Parties: Bobby STALEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

851 So.2d 805

Bobby STALEY, Appellant, v. STATE of Florida, Appellee.

Nos. 2D02-857, 2D02-1325.

District Court of Appeal of Florida, Second District.

July 30, 2003.

James Marion Moorman, Public Defender, and Deborah K. Bruckheimer, Assistant

Public Defender, Bartow, for Appellant.

Bobby Staley, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

On direct appeal, Bobby Staley challenges the revocation of his probation. He has also petitioned for a writ of habeas corpus, contending he is being illegally confined based on the erroneous revocation of his probation. We have consolidated the two proceedings. We reverse the order revoking probation that Staley challenges in his appeal. For this reason, his habeas petition is moot.

Staley was placed on probation for drug offenses in January 2000. In August 2000, he admitted violating his probation in exchange for a suspended sentence of two years' imprisonment with the requirement that he spend two years on drug offender probation, subject to all the conditions of drug court. He signed a "drug court contract," which included the special condition that he "agrees to waive his rights to an adversarial hearing or trial and will instead proceed directly to sentencing upon determination by the Drug Court Judge that [he] has failed to successfully complete the Drug Court Program."

On December 22, 2001, Staley allegedly failed to deposit a urine sample at Southwest Florida Addiction Services, as he had been directed to do. An arrest/notice to appear and probable cause statement was issued on December 26, but no affidavit of violation of probation was ever filed. On that same day, the circuit court held a hearing, found that Staley had violated his probation, and sentenced him to two years' imprisonment. The State presented no proof of the violation at this hearing. Indeed, no evidence was admitted; no one testified about what condition of probation Staley had violated. Although the written order revoking Staley's probation stated that he had pleaded guilty to the violation, the transcript of the hearing contradicts this. Rather, it reflects Staley's assertion that he had attempted to abide by all requirements of his drug offender probation, and that any violation was not willful.

Although a probationer accused of a violation is not entitled to the full panoply of rights guaranteed at a criminal trial, he is entitled to minimal due process, including

(a) written notice of the claimed violations...; (b) disclosure ... of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses...; (e) a `neutral and detached' hearing body ...; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking....

Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Section 948.06, Florida Statutes (2001), implements these rights and requires that a court conduct a probation revocation hearing if the probationer disputes the charges. At the hearing, the State must prove the violation by a preponderance of the evidence. Stevens v. State, 823 So.2d 319, 320 (Fla. 2d DCA 2002).

Section 948.01(13), which authorizes drug offender probation, specifically states that such probation is "subject to revocation of probation as provided in s. 948.06." Obviously, the procedure employed in this case failed to satisfy the statutory and constitutional requirements. Nevertheless, the State contends we must affirm. It maintains that the procedure was sufficient because Staley waived his right to an adversarial hearing in his drug court contract. We disagree for three reasons.

First, even if Staley validly made an advance waiver of his right to contest evidence that might be submitted against him in the future, that is all that he waived. He did not relieve the State of its burden to file an affidavit setting out the alleged violation. He did not relieve the State of its burden to prove the violation by competent evidence. Here, no affidavit specifying Staley's alleged violation of any condition of probation was filed. See DeJesus v. State, 848 So.2d 1276 (Fla. 2d DCA 2003)

; Carmichael v. State, 834 So.2d 421 (Fla. 2d DCA 2003). The State presented no evidence and therefore failed to satisfy its burden of proof. See Cox v. State, 816 So.2d 160, 161 (Fla. 2d DCA 2002). Further, as no evidence was presented at the hearing, the court's belief that Staley failed to give a required urine sample could only have been the result of hearsay from some unspecified extrajudicial source. Although hearsay may be introduced at a probation revocation hearing, a violation cannot be found based solely on hearsay. DeJesus; Grimsley v. State, 830 So.2d 118, 119-120 (Fla. 2d DCA 2002).

Second, again assuming that Staley could validly waive in advance his right to contest allegations that might be lodged against him in the future, any such waiver could only be enforced if it was knowingly, intelligently, and voluntarily given. See A.D.W. v. State, 777 So.2d 1101, 1104 (Fla. 2d DCA 2001)

. When the court placed Staley on drug offender probation, it discussed many terms of the drug court contract with him. It specifically told him that his urine would be tested; that he would be required to go to group therapy and a twelve-step program; and that if his urine was positive for drugs, or if he missed a meeting, that would be a violation of the contract. But the court never covered the clause that concerned the waiver of an adversarial hearing. Without an adequate inquiry from the court about this portion of the contract, we cannot find that Staley waived his right to a probation revocation hearing knowingly, intelligently, and voluntarily. See id.

Third, and more important, Staley simply could not have knowingly and intelligently waived his right to contest allegations against him without knowing what those allegations were. A probationer can certainly waive his rights to due process and to statutory procedures after they have been implicated. Thus, for instance, once an affidavit of violation has been filed the probationer may elect not to contest it. But we do not believe he...