IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MARCUS WHITE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-3757
STATE OF FLORIDA,
Appellee.
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Opinion filed July 8, 2015.
An appeal from the Circuit Court for Leon County.
Frank Sheffield, Judge.
Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Angela R. Hensel and Jillian H. Reding,
Assistant Attorneys General, Tallahassee, for Appellee.
RAY, J.
Appellant, Marcus White, appeals the revocation of his probation. We agree
with Appellant’s contention that the revocation was based solely on hearsay.
Accordingly, we reverse.
During the violation of probation hearing, Appellant’s probation officer
testified that on the evening at issue, she went to Appellant’s home to check his
compliance with the curfew condition of his probation. She did not get out of her
car but communicated with Appellant’s uncle and an unnamed woman, who were
in a group that was drinking and talking on Appellant’s porch. Appellant’s uncle
stated that Appellant had gone to a store, and the unnamed woman stated that
Appellant was in the shower inside the house. Neither would retrieve Appellant
from the home, and when the unnamed woman began to raise her voice, the
probation officer chose to leave for her own safety. Before leaving, the probation
officer asked the woman to tell Appellant she had come by and to contact her.
Appellant did not call the probation officer until the next morning, when he stated
that he had been in the shower when she arrived and that his uncle had been drunk
and had lied about Appellant’s whereabouts.
The trial court found Appellant in violation of his probation for failing to
adhere to his curfew, revoked his probation, and sentenced him to thirty-six
months in prison. That sentence was later reduced to thirty-three months for an
unrelated reason.
While a trial court has broad discretion to determine whether a person has
willfully and substantially violated his probation, findings supporting that
determination must be supported by competent, substantial evidence. Prickett v.
State, 895 So. 2d 533, 534 (Fla. 1st DCA 2005); Van Wagner v. State, 677 So. 2d
314, 317 (Fla. 1st DCA 1996). Hearsay evidence is admissible at evidentiary
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hearings for probation revocation, but a decision to revoke probation cannot be
based entirely on hearsay. Smith-Curles v. State, 24 So. 3d 702, 702-03 (Fla. 1st
DCA 2009); Stewart v. State, 926 So. 2d 413, 414 (Fla. 1st DCA 2006); C.B.H. v.
State, 117 So. 3d 450, 451 (Fla. 2d DCA 2013) (concluding that a probation
officer’s testimony was insufficient to support probation revocation where the
probation officer did not search the probationer’s home and instead relied on a
statement by the probationer’s mother that he was not home); Rowan v. State, 696
So. 2d 842, 843 (Fla. 2d DCA 1997) (concluding that a probation officer’s reliance
on statements from the probationer’s landlord that he had moved in violation of his
probation was insufficient in itself to support probation revocation).
In arguing that the revocation was based on more than hearsay, the State
relies on the probation officer’s personal observations on the evening at issue, her
discussion with Appellant the next morning, testimony concerning a post-curfew
visit to Appellant’s home on a prior occasion, and Appellant’s knowledge of the
protocol in case an emergency precludes compliance with his curfew. None of this
testimony provides evidence that Appellant violated his curfew on the night in
question. Rather, the only evidence substantiating the charge that Appellant
violated his probation was hearsay. Therefore, we reverse the revocation of
probation and the resulting prison sentence.
REVERSED.
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LEWIS and KELSEY, JJ., CONCUR.
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