Opinion
Case No. 2D19-2071
01-08-2021
Walter Lee HOLDER, Jr., Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
Walter Lee Holder, Jr., appeals the order revoking his community control. Of the eight violations underlying the revocation, Holder challenges only two: a violation of condition (16) on September 24, 2017, and a violation of condition (9). We reject without comment Holder's challenge to the violation of condition (16) but agree that the violation of condition (9) cannot stand because it was based solely on hearsay. Accordingly, we affirm the revocation of his community control but remand for entry of a corrected revocation order striking the violation of condition (9).
Condition (9) requires that Holder "promptly and truthfully answer all inquiries directed to [him] by the court or the officer." At the revocation hearing, Holder's community control officer, Bruce Beumel, testified that Holder had reported that he would be employed at Heartland Coating between October 9, 2017, and October 16, 2017. On October 10, however, Beumel had called Heartland Coating and had spoken with the owner, who had told Beumel that Holder had done a little work there but had not worked there in more than three weeks. Holder contemporaneously objected to this testimony on hearsay grounds, and the trial court overruled the objection, noting that hearsay is admissible at revocation hearings although it cannot form the sole basis for revocation.
At the conclusion of all of the evidence, Holder argued extensively that the only evidence that he had violated condition (9) was Beumel's hearsay testimony. The State responded that Holder's report to Beumel concerning his employment—which the State characterized as an "admission"— was nonhearsay that established the "statement" element of a "false statement" violation. Again recognizing that the finding of a violation cannot be based solely on hearsay, the court agreed with the State and concluded that Holder's report itself furnished the necessary nonhearsay component to support the finding of a violation of condition (9). Holder now challenges that conclusion.
As an initial matter, the State argues that Holder's challenge is not preserved for appeal because despite his contemporaneous objection and subsequent argument at the revocation hearing, defense counsel at sentencing "admitted that the evidence 'was su[ff]icient for The Court to make its finding.' " We disagree. Holder timely objected at the revocation hearing, see F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) ("In general, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs." (citing J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998) )), and taking it in its entire context, we do not read counsel's comment at the sentencing hearing more than a month later as abandoning that objection. Accordingly, the objection was preserved.
"It is undisputed that hearsay evidence is admissible in a probation revocation hearing to prove a violation of probation." Russell v. State, 982 So. 2d 642, 646 (Fla. 2008). But hearsay evidence cannot be the only basis for revocation. Id. And although Holder's report to Beumel was not hearsay, the report itself was not evidence of a violation—the violation occurs only if the report is false, and the only evidence that the report was false was Beumel's hearsay testimony regarding his call to Heartland Coating.
As the State now acknowledges on appeal, this case is similar to Lanier v. State, 936 So. 2d 1158 (Fla. 2d DCA 2006). In that case, Lanier was alleged to have provided false reports to his probation officer. Id. at 1160. The probation officer testified that Lanier had reported that he was working at "Labor Ready" and was attending school. Id. The probation officer testified further "that he called Labor Ready and was informed that Lanier had not worked there" since the previous year. Id. The probation officer also testified that he had called the school coordinator for the school that Lanier had claimed to be attending and was similarly informed that Lanier was not a student there. Id. Although Lanier objected that the testimony was hearsay, the trial court, based on that testimony, found that he had violated his probation by making the false reports. Id.
On appeal, we agreed with Lanier that the only evidence supporting the violations was the probation officer's hearsay testimony and that, "[a]s hearsay, this testimony was insufficient, standing alone, to support" the violations. Id. at 1162. Because Lanier had also violated his probation by committing a new law violation, however, we affirmed, remanding solely for entry of a corrected revocation order striking the pertinent findings. Id.
Consistent with Lanier, we hold that the trial court erred in finding that Holder had violated condition (9). But also consistent with that decision, based on Holder's seven other violations, we affirm the revocation of his community control and remand solely for entry of a corrected revocation order striking that violation.
Although none of the remaining seven violations was based on a new law violation, nothing in the record suggests that but for that eighth technical violation, the trial court would not have revoked Holder's community control. See Kase v. State, 206 So. 3d 165, 166 (Fla. 2d DCA 2016) (affirming the revocation of probation despite holding that the evidence did not support the finding of one of the technical violations because "[t]he trial court's comments leave no doubt that it would have revoked Mr. Kase's probation based solely on [his other technical violation]").
Affirmed; remanded with directions.
LaROSE and SLEET, JJ., Concur.