Opinion
No. 2D21-1637
06-01-2022
Kristopher M. MARCUS, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Ryan M. Edmiston, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Ryan M. Edmiston, Assistant Attorney General, Tampa, for Appellee.
MORRIS, Chief Judge.
Kristopher M. Marcus appeals an order revoking his probation and the resulting sentence for the underlying convictions of possession of methamphetamine and possession of drug paraphernalia. Because we conclude that there was no competent substantial evidence that Marcus changed his residence without permission, we reverse and remand.
BACKGROUND
In November 2019, Marcus pleaded no contest to the underlying charges, and pursuant to a plea agreement, he was adjudicated guilty and sentenced to twenty-four months of probation on the first charge and to twelve months of probation on the second charge, with the terms running concurrently. In August 2020 and again in October 2020, affidavits of violation of probation were filed alleging that Marcus failed to successfully complete or remain in drug/alcohol treatment (condition 6) and that Marcus changed his residence without obtaining permission (condition 3). After an evidentiary hearing, the trial court found that the State failed to prove that Marcus failed to successfully complete or remain in drug/alcohol treatment. Thus our focus is on the trial court's determination that the State proved by the greater weight of the evidence that Marcus willfully and substantially violated his probation by changing his residence without permission.
At the hearing, Marcus's probation officer testified that he went to Marcus's residence in October 2020 and spoke to Marcus's mother. Marcus's mother told the probation officer that Marcus did not live there anymore and that she did not know his whereabouts. The probation officer did not go inside the residence to see if Marcus was inside or whether Marcus's belongings were still inside the residence. Instead, after receiving the information from Marcus's mother, the probation officer checked the jail, the local hospital, and the FCIC and NCIC databases to see if Marcus had been arrested or hospitalized. The probation officer did not have any interaction with Marcus between October 2020 and March 2021. And Marcus's mother did not testify at the hearing.
Marcus did testify. And contrary to the probation officer's recitation of what Marcus's mother had stated, Marcus testified that he still lived with his mother in October 2020, including on the day that the probation officer visited. He also testified that his belongings were still inside the residence on the day of the probation officer's visit. Marcus acknowledged that his last contact with the probation officer was in August 2020, though he asserted that he unsuccessfully had tried to contact the probation officer on several occasions since that time, that he was prevented from visiting the probation office in November 2020 due to the Covid-19 pandemic, and that he was in jail between December 2020 and March 2021.
Ultimately, the trial court concluded that Marcus violated condition 3 by changing his residence without first obtaining the consent of the probation officer. In making that determination, the trial court found that the hearsay evidence from Marcus's mother—as testified to by the probation officer—was sufficiently corroborated by the fact that Marcus failed to report to the probation officer after August 2020.
ANALYSIS
Probation may be revoked where the State proves a willful and substantial violation by the greater weight of the evidence. Savage v. State , 120 So. 3d 619, 621 (Fla. 2d DCA 2013). We review a trial court's determination on this issue for competent substantial evidence. Id.
While the State can rely on hearsay evidence to prove a violation, it cannot rely on hearsay alone. Russell v. State , 982 So. 2d 642, 646 (Fla. 2008) ; see also Bailey v. State , 293 So. 3d 551, 552 (Fla. 2d DCA 2020) ; Carrington v. State , 168 So. 3d 285, 287 (Fla. 2d DCA 2015) ; Rowan v. State , 696 So. 2d 842, 843 (Fla. 2d DCA 1997) ; Ratliff v. State , 970 So. 2d 939, 941 (Fla. 4th DCA 2008). Thus, "a probation officer's hearsay testimony, by itself, that another person told him or her the probationer no longer lived at a residence is insufficient to support a change of residence violation." Rutland v. State , 166 So. 3d 878, 878 (Fla. 1st DCA 2015). Even where such hearsay testimony is coupled with a one-time observation that the probationer was not at the residence when the probation officer visited, the evidence is insufficient to prove that the probationer moved. See Bailey , 293 So. 3d at 552 (noting that the probation officer knocked on the door and did not receive an answer in addition to being told that the probationer moved out but explaining that "[t]he fact that the probation officer was unable to make contact with [the probationer] at his home does not prove that [he] moved"); see also Rowan , 696 So. 2d at 844 ; Rutland , 166 So. 3d at 878 ; Webb v. State , 154 So. 3d 1186, 1188 (Fla. 4th DCA 2015).
In this case, the probation officer relied on Marcus's mother's hearsay statement that Marcus no longer lived with her and that she did not know where he was. After checking the jail, local hospital, and the FCIC and NCIC databases, the probation officer assumed that Marcus had changed his residence without permission. But checking such databases and contacting the jail and a hospital does nothing to establish that a probationer moved from his or her residence.
This case is very much like Carrington wherein a probationer's mother informed the probation officer that Carrington no longer lived at her residence, a fact that was later confirmed by Carrington's father. Carrington , 168 So. 3d at 287. There was no other nonhearsay evidence provided, such as the probation officer's testimony that he thoroughly searched the home and determined that Carrington no longer lived there. Id. Consequently, we concluded that the trial court erred by revoking probation for that violation based solely on the hearsay evidence. Id. Similarly, in Bailey , this court concluded that the hearsay provided to the probation officer about Bailey moving from his approved residence was legally insufficient to establish a willful and substantial violation. Bailey , 293 So. 3d at 552.
Here, the State simply failed to present any nonhearsay evidence that corroborated Marcus's mother's hearsay statement about Marcus moving from his approved residence. While the trial court apparently relied on the testimony about Marcus failing to report to the probation officer after August 2020, doing so was error because the failure to report was never alleged as a violation of Marcus's probation. See Vann v. State , 288 So. 3d 757, 758 (Fla. 2d DCA 2020) (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). Quite simply then, the only evidence before the trial court was uncorroborated hearsay, and the trial court erred by concluding that the State sufficiently established that Marcus violated condition 3 by changing his residence without permission.
Because it is undisputed that Marcus's probation was set to terminate in November 2021 and because our reversal of the order of revocation and resulting sentences will essentially restore Marcus to probation, we remand for his immediate discharge.
We note that the revocation order contained a scrivener's error stating that Marcus admitted to "all VOP conditions." Marcus did not admit to either alleged violation, and the trial court determined that the State did not prove a violation of condition 6. Further, the order was deficient because it failed to list the condition that Marcus was found to have violated. However, because we are reversing the order of revocation, these technical deficiencies are rendered moot.
Reversed and remanded.
LaROSE and BLACK, JJ., Concur.