Whittaker v. State, Case No. 2D09-2715

• Decision Date: 27 October 2010
• Docket Number: Case No. 2D09-2715
• Parties: ROY EUGENE WHITTAKER, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

ROY EUGENE WHITTAKER, Appellant,

v.STATE OF FLORIDA, Appellee.

Case No. 2D09-2715

DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

Opinion filed October 27, 2010.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Manatee County; Nancy K. Donnellan, Senior Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Roy Eugene Whittaker appeals the revocation of his probation in five separate circuit court cases and his resulting prison sentences. The State proved new law violations in five new cases by a preponderance of the evidence, and because those new law violations were sufficient to justify the revocation of probation, we affirmthe order revoking probation. See Gaddy v. State, 23 So. 3d 1258, 1259 (Fla. 2d DCA 2009); Green v. State, 19 So. 3d 449, 449-50 (Fla. 2d DCA 2009). However, we remand with directions for the trial court to strike the findings of new law violations in two new cases that we conclude were not supported by the State's evidence.

At the violation hearing, the State attempted to prove the new law offense of fraudulent use of a credit card by Whittaker at a local Wal-Mart in circuit court case number 08-1337. The State presented the testimony of Vincent Eurice and Carla Frase to prove that Eurice's home was burglarized, that Frase's credit cards and other items were stolen, and that some of Frase's items were found in Whittaker's residence. However, the only evidence that Whittaker fraudulently used Frase's credit card at Wal-Mart was hearsay or improperly admitted because it was not authenticated.

Frase's boyfriend, Eurice, offered hearsay testimony that after calling their credit card companies, Eurice and Frase learned that one of Frase's credit cards had been used at Wal-Mart. Frase also offered hearsay testimony that her credit card was used at Wal-Mart. Detective Atkinson offered hearsay testimony that the credit card company told her the date and time of the transaction at Wal-Mart and that the loss prevention officer at Wal-Mart told her the credit card was used during a particular transaction and the photographs from a Wal-Mart security camera, which were introduced into evidence, depicted that transaction.

The photographs of the Wal-Mart transaction were not properly authenticated because no witness with the requisite knowledge testified that the photographs were a fair and accurate...