Summary
explaining that trial courts are not permitted to revoke probation based on conduct not charged in affidavit and holding that reversal was required where trial court relied on hearsay that probationer moved from his approved residence along with probationer's failure to report despite that conduct never being charged in the affidavit
Summary of this case from Marcus v. StateOpinion
Case No. 2D18-4704
01-08-2020
John M. VANN, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Joanna B. Conner, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Joanna B. Conner, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
LaROSE, Judge.
John M. Vann challenges an order revoking his probation. The State correctly concedes that the trial court improperly revoked probation based solely on hearsay evidence. We agree and reverse.
Beginning in August 2017, the State filed several affidavits alleging that Mr. Vann violated his probation. An amended affidavit filed on September 27, 2017, alleged that Mr. Vann violated condition three by changing his residence without his probation officer's consent. The revocation affidavit recited that Mr. Vann's father told the probation officer that Mr. Vann had moved.
The trial court held a violation of probation hearing. Mr. Vann's probation officer was the only witness to testify. She explained that after Mr. Vann failed to report to her for several months, she attempted to visit him at his home. She testified that Mr. Vann's father greeted her at the home. The probation officer further testified:
I asked where John was, and [his father] said he was not there and had not been there in a while. He thought because he was aware of the VOP warrant, so he did state that he thought that Mr. Vann, his son, wasn't there because he was -- because of the warrant. He stated he'd been in contact with John, but that he hadn't been there in a few weeks and did not know exactly where he was.
At the conclusion of the hearing, the trial court revoked probation, concluding that Mr. Vann had violated condition three. The trial court deemed Mr. Vann's failure to report to his probation officer as corroborative of the hearsay evidence and explained that Mr. Vann had violated probation by "failing to report as directed by moving and absconding from supervision." This was error.
A trial court's decision to revoke probation is reviewed for an abuse of discretion. See Savage v. State, 120 So. 3d 619, 623 (Fla. 2d DCA 2013). Competent substantial evidence must support a finding of a willful and substantial violation. Id. Hearsay evidence, by itself, is insufficient to revoke probation. See Gary v. State, 987 So. 2d 180, 181 (Fla. 2d DCA 2008) (holding that hearsay testimony from probationer's daughter that probationer was no longer living at his approved residence was legally insufficient to support a revocation of probation). Additional nonhearsay evidence is required to establish a willful and substantial violation. See Rowan v. State, 696 So. 2d 842, 843 (Fla. 2d DCA 1997).
Further, in revoking Mr. Vann's probation, the trial court relied on testimony that Mr. Vann had failed to report to the probation officer. However, "[a] trial court is not permitted to revoke probation on conduct not charged in the affidavit of revocation." Johnson v. State, 811 So. 2d 749, 750 (Fla. 2d DCA 2002). None of the affidavits filed against Mr. Vann alleged that he had violated this condition of probation.
The hearsay statements of Mr. Vann's father were legally insufficient to revoke probation. And the State did not claim that Mr. Vann failed to report to his probation officer. Accordingly, we reverse the revocation order and sentence.
Reversed.
CASANUEVA and SALARIO, JJ., Concur.