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concluding that testimony of probation officer that probationer's grandmother told him that probationer no longer lived at residence, without non-hearsay evidence, was insufficient to support probation revocation
Summary of this case from Garcia v. StateOpinion
Case No. 96-0267
Opinion filed April 2, 1997
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Howard M. Zeidwig, Judge; L.T. Case No. 94-20506CF10A.
Kevin J. Kulik of Kevin J. Kulik, P.A., Fort Lauderdale, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Patricia Ann Ash, Assistant Attorney General, West Palm Beach, for appellee.
The trial court found appellant, Brian Smith, to be in violation of his probation for changing his residence without the consent of his probation officer and attempted burglary. The only evidence of a change of residence was the probation officer's testimony that Smith's grandmother had said that Smith moved in with his girlfriend. Although hearsay is admissible in revocation proceedings, a court cannot revoke probation based solely on a hearsay statement by a family member to a probation officer that the probationer does not live at a certain address. Brown v. State, 659 So.2d 1260, 1261-62 (Fla. 4th DCA 1995). There was no other evidence on this portion of the charge. Compare Dunham v. State, 683 So.2d 507 (Fla. 4th DCA 1996), aff'd, 22 Fla. L. Weekly S49 (Fla. Jan. 23, 1997). We therefore reverse the finding of a violation of probation on that ground.
As to the other violation, we find no abuse of discretion. See Bernhardt v. State, 288 So.2d 490, 501 (Fla. 1974). Because we cannot tell from this record whether the court would have revoked probation or whether Smith's sentence would have been the same had the court found only one violation, we remand the case to the trial court. Brown, 659 So.2d at 1262. On remand, if the court determines that revocation is still appropriate, it must enter a written order of revocation. E.g., Horne v. State, 675 So.2d 247 (Fla. 4th DCA 1996).
FARMER, STEVENSON and GROSS, JJ., concur.