Tobias v. State, 4D01-4132.
| Decision Date | 23 October 2002 |
| Docket Number | No. 4D01-4132.,4D01-4132. |
| Citation | 828 So.2d 1066 |
| Parties | Davon TOBIAS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
The role and limitations on the use of hearsay in a violation of probation hearing are raised in this appeal. The defendant appeals his conviction and sentence entered after an evidentiary hearing on a violation of probation. He argues that the trial court erred in finding him guilty of failing to report to his probation officer when the only testimony given to support this allegation was hearsay. We agree and reverse the finding of guilt on this allegation. We affirm the trial court's finding of guilt on the remaining allegation. We remand the case to the trial court for reconsideration of the sentence in light of this opinion.
The defendant pled guilty to grand theft, possession of cocaine, and not having a valid driver's license. The court sentenced him to eighteen months probation with special conditions, which included 364 days in the work release center. He was ordered to surrender after January 1, 2000. Subsequently, the trial court entered an order allowing the defendant to surrender on March 30, 2000.
On June 19, 2000, the probation officer filed a violation of probation and alleged that the defendant failed to file monthly reports for March, April, and May, 2000; failed to surrender for work release on March 30, 2000; and failed to pay $800 in restitution.
At the hearing on the violation, the probation officer testified that she received the defendant's case in June, 2000, and that she had not been the original probation officer on the case. She testified that she had reviewed the file and found that the defendant had failed to file his written monthly reports for March through May. She also verified that he did not turn himself into work release on March 30, 2000.
The defendant testified that he attempted to turn himself in on April 1, 2000, but the jail would not accept him due to a hand injury he had sustained. He testified that he had discussed the matter with his former probation officer, who advised him not to worry about it. The trial court continued the hearing to allow the defendant to call his former probation officer as a witness on his behalf. At the continued hearing, the original probation officer was present, but the defendant did not call her as a witness.
The trial court found that the defendant violated his probation by failing to report to probation for March, April, and May, and failing to surrender for work release on March 30, 2000. The court found the defendant not guilty on the restitution allegation. The court sentenced the defendant to fifty months with credit for time served.
For a violation of a condition of probation to trigger a revocation, the violation must be willful and substantial, and the state must...
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