Opinion
1D21-1791
03-16-2022
Timothy Martin Southerland, Appellant, v. State of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Jovona I. Parker, Assistant Attorney General, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Bay County. Brantley S. Clark Jr., Judge.
Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Jovona I. Parker, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
The trial court found that Appellant violated his probation by failing to report as instructed by his probation officer and by changing his residence without notifying the probation office or procuring its consent. We affirm as to the first violation because competent substantial evidence supports the conclusion that Appellant failed to report as required for months, including after being specifically directed to do so by his probation officer. As to the second alleged violation, we agree with Appellant that the probation officer's testimony and hearsay about Appellant changing his residence was insufficient to prove a probation violation. See Berg v. State, 327 So.3d 944 (Fla. 1st DCA 2021) (concluding that officer testimony of defendant not being home, when coupled only with hearsay from another person that the defendant no longer resides at the residence, is insufficient to prove a violation for changing residence without permission); Rutland v. State, 166 So.3d 878 (Fla. 1st DCA 2015) (noting that a probation officer's hearsay testimony of being told by another person that the probationer no longer lived at a residence is insufficient to support a change of residence violation).
Finally, we affirm the trial court's decision to revoke probation and to impose a sentence because it is clear from the record that the trial court would have revoked Appellant's probation and imposed the same sentence. Ware v. State, 54 So.3d 1074, 1074 (Fla. 1st DCA 2011). The court found it "obvious [that Appellant] is not amenable to any supervision." We, therefore, affirm the judgment and sentence and remand with directions to strike the violation for changing residence without permission.
Osterhaus and Jay, JJ., concur; Kelsey, J., concurs in result only.