Wheeler v. State, No. 76--961

CourtFlorida District Court of Appeals
Writing for the CourtSCHEB; BOARDMAN, C.J., and GRIMES
Citation344 So.2d 630
Docket NumberNo. 76--961
Decision Date13 April 1977
PartiesRichard L. WHEELER, Appellant, v. STATE of Florida, Appellee.

Page 630

344 So.2d 630
Richard L. WHEELER, Appellant,
v.
STATE of Florida, Appellee.
No. 76--961.
District Court of Appeal of Florida, Second District.
April 13, 1977.

Page 631

Robert A. Farrance of Kearney & Mulock, Bradenton, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

Appellant contends the trial court erred in revoking his probation based upon hearsay testimony and his own out of court admissions. We disagree and affirm.

Appellant was charged with making a lewd, lascivious or indecent assault upon a minor child. He pled nolo contendere and was placed on probation for three years on December 21, 1973. He moved to Bexar County, Texas, where he was placed under supervision of local probation authorities effective February 20, 1975. In April 1976, his Texas probation officer forwarded an affidavit to the probation authorities in Manatee County, Florida, alleging a violation of probation based on appellant's failure to file reports for the months of March, May, June, July, August and September 1975, and January and February of 1976. On this basis the Manatee County probation officer signed an affidavit and the court issued a warrant of violation.

At a hearing on revocation of appellant's probation, the Texas probation officer's affidavit was admitted into evidence over appellant's objection. Additionally, the court received testimony from the Manatee County probation officer who stated that she had reviewed the alleged violations with appellant and that he had admitted the Texas report was correct. Appellant testified in his own behalf, claiming there was some confusion about requirements for filing the reports since he had more than one probation officer. He also claimed he had been permitted to file late reports. The trial court found appellant had committed the violation, revoked probation and sentenced him to prison for fourteen months.

The condition of probation violated required appellant to make a full and truthful report to his probation supervisor not later than the fifth day of each month. This condition is common to almost every probation. See Section 948.03, Florida Statutes.

Under due process of law, the appellant was entitled to a hearing on the issue of whether his probation was to be revoked. Morrissey v. Brewer,408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). However, the

Page 632

volume of appeals from revocations indicates...

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24 practice notes
  • Del Valle v. State, No. SC08-2001
    • United States
    • United States State Supreme Court of Florida
    • December 15, 2011
    ...a court must only conclude and determine that a substantial violation of the terms of probation occurred. See Wheeler v. State, 344 So. 2d 630, 632 (Fla. 2d DCA 1977). Requiring the probationer to establish inability to pay by clear and convincing evidence is therefore not inconsistent with......
  • Del Valle v. State , No. SC08–2001.
    • United States
    • United States State Supreme Court of Florida
    • February 13, 2012
    ...a court must only conclude and determine that a substantial violation of the terms of probation occurred. See Wheeler v. State, 344 So.2d 630, 632 (Fla. 2d DCA 1977). Requiring the probationer to establish inability to pay by clear and convincing evidence is therefore not inconsistent with ......
  • Savage v. State, No. 2D12–2269.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2013
    ...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 appe......
  • Suggs v. Fla. Parole Comm'n, CASE NO. 14-60310-Civ-GAYLES
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • December 2, 2014
    ...a revocation proceeding must conclude from the weight of the evidence only that a substantial violation occurred. See Wheeler v. State, 344 So.2d 630 (Fla. 2 DCA 1977). In this case, the competent evidence admitted at thePage 17revocation hearing, which includes direct evidence in the form ......
  • Request a trial to view additional results
24 cases
  • Del Valle v. State, No. SC08-2001
    • United States
    • United States State Supreme Court of Florida
    • December 15, 2011
    ...a court must only conclude and determine that a substantial violation of the terms of probation occurred. See Wheeler v. State, 344 So. 2d 630, 632 (Fla. 2d DCA 1977). Requiring the probationer to establish inability to pay by clear and convincing evidence is therefore not inconsistent with......
  • Del Valle v. State , No. SC08–2001.
    • United States
    • United States State Supreme Court of Florida
    • February 13, 2012
    ...a court must only conclude and determine that a substantial violation of the terms of probation occurred. See Wheeler v. State, 344 So.2d 630, 632 (Fla. 2d DCA 1977). Requiring the probationer to establish inability to pay by clear and convincing evidence is therefore not inconsistent with ......
  • Savage v. State, No. 2D12–2269.
    • United States
    • Court of Appeal of Florida (US)
    • August 30, 2013
    ...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 appe......
  • Suggs v. Fla. Parole Comm'n, CASE NO. 14-60310-Civ-GAYLES
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • December 2, 2014
    ...a revocation proceeding must conclude from the weight of the evidence only that a substantial violation occurred. See Wheeler v. State, 344 So.2d 630 (Fla. 2 DCA 1977). In this case, the competent evidence admitted at thePage 17revocation hearing, which includes direct evidence in the form ......
  • Request a trial to view additional results

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