NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DARYL THOMAS MULLINS, )
)
Appellant, )
) Case Nos. 2D14-2800
v. ) 2D14-2886
)
STATE OF FLORIDA, )
) CONSOLIDATED
Appellee. )
)
Opinion filed September 11, 2015.
Appeals from the Circuit Court for Lee
County; Edward J. Volz, Jr., Judge.
Howard L. Dimmig, II, Public Defender, and
Clark E. Green, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Jessica Stephans,
Assistant Attorney General, Tampa, for
Appellee.
CASANUEVA, Judge.
Daryl Thomas Mullins appeals the revocation of his probation and the
resulting sentence. Mr. Mullins was found to have violated four conditions of his
probation after a hearing. He argues, and the State properly concedes, that only
hearsay evidence was presented to support the violation of conditions three and nine,
and we remand for the trial court to strike these two violations from the revocation order.
We affirm without discussion that part of the revocation order finding that Mr. Mullins
violated conditions one and five.
Mr. Mullins was accused of violating condition three by failing to obtain the
consent of his probation officer before changing his residence, and he was accused of
violating condition nine by giving the probation officer false information when he was
asked about his permanent residence. At the revocation hearing, Mr. Mullins' probation
officer testified that she visited the address that Mr. Mullins had given her and that the
owner of the residence, Vassy Crawford, told her that Mr. Mullins did not live there. The
State properly concedes that this hearsay testimony was insufficient to prove the
probation violations.
In determining whether a probationer willfully and substantially violated
probation, the trial court must determine whether the State proved the allegations by the
greater weight of the evidence. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA
2013). This court must determine if the trial court's finding is supported by competent,
substantial evidence. Id. In Gary v. State, 987 So. 2d 180, 181 (Fla. 2d DCA 2008), the
probation officer testified that she visited the appellant's house several times, that the
appellant was never present, and that the appellant's adult daughter, who also lived at
the home, said that the appellant had moved away. This court held that the fact that the
appellant was not at home when the probation officer visited did not prove that the
appellant had moved and that the hearsay evidence attributed to the appellant's
daughter, standing alone, was insufficient to support the finding of a violation. Id.
Similarly in the present case, the hearsay testimony of the probation officer was
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insufficient to establish that Mr. Mullins had moved from the residence. We therefore
strike that part of the revocation order finding that Mr. Mullins violated condition three of
his probation by changing his residence without the permission of his probation officer
and condition nine by failing to truthfully respond to his probation officer when he
reported his permanent residence. However, we affirm the revocation of Mr. Mullins's
probation because it is clear that the trial court would have revoked his probation based
on the other two violations. See Bernier v. State, 951 So. 2d 21, 22 (Fla. 2d DCA
2007).
Accordingly, we affirm that part of the revocation order finding that Mr.
Mullins violated conditions one and five of his probation. We remand for the trial court
to enter an order of revocation that deletes the finding that Mr. Mullins violated
conditions three and nine of his probation.
Affirmed; remanded with instructions.
MORRIS and SLEET, JJ., Concur.
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