White v. State, V--119

• Decision Date: 15 October 1974
• Docket Number: No. V--119,V--119
• Parties: Robert WHITE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 464

301 So.2d 464

Robert WHITE, Appellant, v. STATE of Florida, Appellee.

No. V--119.

District Court of Appeal of Florida, First District.

Oct. 15, 1974.

Louis O. Frost, Jr., Public Defender, and Steven E. Rohan, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appellee.

BOYER, Judge.

Appellant was placed on probation for a period of three years for the offense of possession of dangerous drugs. Thereafter a rule to show cause was served upon him following which a hearing was held which culminated in appellant's probation being revoked and a three year prison sentence being imposed. It is from the order revoking probation that appellant takes this appeal.

The only material point raised relates to the admissibility of hearsay testimony in revocation hearings.

The purpose and objective of a probation revocation hearing is to satisfy the conscience of the court as to whether the conditions of probation have been violated. (Brill v. State, 1947, 159 Fla. 682, 32 So.2d 607) The statutory revocation procedures employed in Florida meet the requirements of due process. (Bernhardt v. State, Sup.Ct.Fla.1974, 288 So.2d 490; Sarles v. State, Fla.App.1st 1974, 291 So.2d 95) However, procedures alone do not necessarily result in due process. The proceedings conducted pursuant to the statutory procedures must also meet due process standards.

Although it has been held that the admission of hearsay testimony is not reversible error, per se, in a probation revocation proceeding (see Hampton v. State, Fla.App.3rd 1973, 276 So.2d 497 and Franklin v. State, Fla.App.2d 1969, 226 So.2d 461) we are acquainted with no case holding that hearsay testimony is properly admissible in such proceedings. In is not. While the admission of such testimony may constitute harmless error when other competent evidence has been adduced to support the revocation of probation, nevertheless hearsay testimony should not be admitted with impunity. While very broad discretion is accorded to the tral judge in determining whether probation has been violated, a judgment revoking probation may not be properly entered where there is no other evidence except hearsay testimony. (Hampton v. State, supra) In other words, in order for a revocation judgment to be sustained there must have been adduced at the hearing evidence meeting the customary requisites of admissibility, exclusive of hearsay or other evidence not generally admissible under our rules of admissibility. (Franklin v. State, supra) In the case sub judice the record reveals that in arguing the admissibility of hearsay evidence following objection of appellant's attorney, the State stated: 'Your Honor, hearsay testimony is definitely permissible on probation violations.' whereupon the trial judge ruled and said: 'It's admissible.' That ruling was in error.

Appellant was charged with violations of conditions (d) and (e) of his probation order, said conditions stating as follows:

'(d) Avoid injurious or vicious habits; avoid association with persons of harmful character or bad reputation.

'(e) In all respects live honorably,...