probation revocation hearing in Florida

2024However, the State presented no evidence at the hearing that Del Corral had an appointment scheduled for February 15 or that he missed said appointment. 5 extent the oral pronouncement controls, see, e.g., Gonzalez v. State, 849 So. 2d 1112, 1113 (Fla. 5th DCA 2003) (explaining oral pronouncement of sentence controls); Laffitte v. State, 16 So. 3d 315, 316 (Fla. 3d DCA 2009) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.” (citing Salvatierra v. State, 691 So. 2d 32 (Fla. 3d DCA 1997))), the oral pronouncem

2024See Jackson v. State, 369 So. 3d 746 , 748 (Fla. 3d DCA 2023) (“Revocation of probation based on an uncharged violation deprives the defendant of due process and constitutes fundamental error.” (quoting Cohen v. State, 171 So. 3d 179, 181 (Fla. 3d DCA 2015))); Laffitte v. State, 16 So. 3d 315, 316 (Fla. 3d DCA 2009) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.” (quoting Salvatierra v. State, 691 So. 2d 32, 32 (Fla. 3d DCA 1997))); Miller v. State, 328 So. 3d 1115 , 1116 (Fla. 2d DCA 2021) (“Where the tri

2024However, the State presented no evidence at the hearing that Del Corral had an appointment scheduled for February 15 or that he missed said appointment. 5 extent the oral pronouncement controls, see, e.g., Gonzalez v. State, 849 So. 2d 1112, 1113 (Fla. 5th DCA 2003) (explaining oral pronouncement of sentence controls); Laffitte v. State, 16 So. 3d 315, 316 (Fla. 3d DCA 2009) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.” (citing Salvatierra v. State, 691 So. 2d 32 (Fla. 3d DCA 1997))), the oral pronouncem

2024See Jackson v. State, 369 So. 3d 746 , 748 (Fla. 3d DCA 2023) (“Revocation of probation based on an uncharged violation deprives the defendant of due process and constitutes fundamental error.” (quoting Cohen v. State, 171 So. 3d 179, 181 (Fla. 3d DCA 2015))); Laffitte v. State, 16 So. 3d 315, 316 (Fla. 3d DCA 2009) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.” (quoting Salvatierra v. State, 691 So. 2d 32, 32 (Fla. 3d DCA 1997))); Miller v. State, 328 So. 3d 1115 , 1116 (Fla. 2d DCA 2021) (“Where the tri

2016Id. (citing Cuciak v. State, 410 So.2d 916, 918 (Fla.1982)).

2007Delgado v. State, 890 So.2d 1269, 1271 (Fla. 5th DCA 2005); see also Cuciak v. State, 410 So.2d 916, 918 (Fla.1982) ("Fair play and justice require that a defendant in a probation revocation hearing be entitled to reasonable discovery pursuant to rule 3.220.").

2007See State v. Cross, 487 So.2d 1056 (Fla.1986) (stating that evidence obtained through an unlawful search is inadmissible in a probation revocation hearing).

1987In State v. Cross, 487 So.2d 1056 (Fla. 1986), the supreme court approved its prior holding in State v. Dodd, 419 So.2d 333 (Fla. 1982) in which it held *531 that the exclusionary rule is applicable in a probation revocation hearing.

2013See Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005) (trial court questioned the state’s witnesses during a probation revocation hearing without the prosecutor having done so, generating the evidence which the court used to find that the defendant violated his probation); Lee v. State, 789 So.2d 1105, 1106-07 (Fla. 4th DCA 2001) (where the defense was misidentification, the trial court instructed the prosecutor to ask a witness to identify the defendant’s tattoos after the prosecutor had not done so); Lyles v. State, 742 So.2d 842, 842-43 (Fla. 2d DCA 1999) (after the state rested and

2010See Williams v. State, 901 So.2d 357 , 359 n. 3 (Fla. 2d DCA 2005); see also Lyles v. State, 742 So.2d 842, 843 (Fla. 2d DCA 1999) (holding trial judge in a probation revocation hearing committed fundamental error where he “gave the appearance of partiality by taking sua sponte actions which benefitted the State”).

2007“Hearsay, though admissible in a probation revocation hearing, is insufficient standing alone to establish a violation of a condition of probation.” Nadeau v. State, 920 So.2d 206 (Fla. 4th DCA 2006) (quoting Wilcox v. State, 770 So.2d 733, 736 (Fla. 4th DCA 2000)).

2006We begin our analysis by recognizing that “[hjearsay, though admissible in a probation revocation hearing, is insufficient standing alone to establish a violation of a condition of probation.” Wilcox v. State, 770 So.2d 733, 736 (Fla. 4th DCA 2000).

2014For example, cases have uniformly held hearsay is admissible at a probation revocation hearing, which has been described as a "deferred sentencing proceeding.” Peters v. State, 984 So.2d 1227, 1230 (Fla.2008) (citing Green v. State, 463 So.2d 1139, 1140 (Fla.1985)).

2008See Green v. State, 463 So.2d 1139, 1140 (Fla.1985) (referring to the revocation process as deferred sentencing).

2024"In the absence of stipulation or consent, the trial of the criminal case should not be construed as a probation revocation hearing but can be treated as such upon stipulation or consent made before or after the trial." State v. Spratling, 336 So. 2d 361, 364 (Fla. 1976).

2002Accordingly, at the formal probation violation hearing held four days after the trial, the trial court was permitted, based on the foregoing and in light of State v. Spratling, 336 So.2d 361 (Fla.1976) (trial of criminal case should not be construed as a probation revocation hearing in the absence of stipulation or consent), to consider the evidence that it heard at the trial as part of the probation violation hearing.

2026See Russel v. State, 982 So. 2d 642, 646 (Fla. 2008) (“It is undisputed that hearsay evidence is admissible in a probation revocation hearing to prove a violation of probation.

2024Hearsay evidence that would be inadmissible during a trial is admissible in a probation revocation hearing to prove a violation of probation. 3 Russell, 982 So. 2d at 646 .

2019See Melton v. State, 65 So. 3d 96, 97 (Fla. 1st DCA 2011) (“While hearsay is admissible at a probation revocation hearing, a revocation of probation may not be based solely upon hearsay evidence, and where the state seeks to revoke probation based on a violation . . . by the commission of a new offense, it is required to present direct, non-hearsay evidence linking the defendant to the commission of the offense.”); see also Johnson v. State, 962 So. 2d 394, 397-98 (Fla. 2d DCA 2007) (reversing a revocation order where the only evidence linking the appellant to the stolen items was hearsay); J.

2011See, e.g., Johnson v. State, 962 So.2d 394, 396-97 (Fla. 2d DCA 2007).

2017See Harvey v. State, 129 So.3d 1165, 1166 (Fla. 3d DCA 2014); Salvatierra v. State, 691 So.2d 32, 32 (Fla 3d DCA 1997) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.”).

2015“As the State properly concedes, the written order should correctly reflect the oral pronouncement.” Harvey v. State, 129 So.3d 1165, 1166 (Fla. 3d DCA 2014); Shacker v. State, 106 So.3d 36 (Fla. 3d DCA 2013); Laffitte v. State, 16 So.3d 315, 316 (Fla. 3d DCA 2009) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing”) (citation omitted).

2015Such evidence is insufficient in itself to support a finding of a violation of probation.”); Carter v. State, 82 So.3d 993, 994-95 (Fla. 1st DCA 2011) (“Hearsay is admissible at a probation revocation hearing to supplement or explain other, competent evidence, but hearsay alone will not support revocation.”).

2015Although limited use can be made of hearsay in probation revocation proceedings, see, e.g., Carter v. State, 82 So.3d 993, 994-95 (Fla. 1st DCA 2011) (stating “[hjearsay is admissible at a probation revocation hearing to supplement or explain other, competent evidence, but hearsay alone will not support revocation”), no hearsay evidence, either, was adduced at the revocation hearing that Mr. Williams was aware, prior to the traffic stop, that the driver was engaged, or had previously been engaged, in criminal activity.

2010See Williams v. State, 901 So.2d 357 , 359 n. 3 (Fla. 2d DCA 2005); see also Lyles v. State, 742 So.2d 842, 843 (Fla. 2d DCA 1999) (holding trial judge in a probation revocation hearing committed fundamental error where he “gave the appearance of partiality by taking sua sponte actions which benefitted the State”).

2009See Williams v. State, 901 So.2d 357 , 359 n. 3 (Fla. 2d DCA 2005); see also Lyles v. State, 742 So.2d 842, 843 (Fla. 2d DCA 1999) (holding trial judge in a probation revocation hearing committed fundamental error where he “gave the appearance of partiality by taking sua sponte actions which benefitted the State”).

2002A revocation of probation cannot be based solely on hearsay evidence, Kipp v. *120 State, 657 So.2d 931, 932 (Fla. 2d DCA 1995), or on allegations neither admitted nor proved, Jordan v. State, 412 So.2d 970, 971 (Fla. 2d DCA 1982).

1997See Kipp v. State, 657 So.2d 931 (Fla. 2d DCA 1995).

2001This scoresheet is incorrect because it erroneously scores 30 points for “legal constraint.” See Martinez v. State, 770 So.2d 211, 213 (Fla. 4th DCA 2000) (“ ‘When a defendant is being sentenced in a probation revocation hearing only for the original crime, case law provides that points may only be added if the defendant is under legal constraint at the time he committed the offense, not at the time probation was revoked.’ ”) (quoting Taylor v. State, 485 So.2d 900, 901 (Fla. 4th DCA 1986)).

2000As this court explained in Taylor , "When a defendant is being sentenced in a probation revocation hearing only for the original crime, case law provides that points may only be added if the defendant is under legal constraint at the time he committed the offense, not at the time probation was revoked." 485 So.2d at 901 .

2017Similarly, “cases have uniformly held hearsay is admissible at a probation revocation hearing, which has been described as a ‘deferred sentencing proceeding.’ ” State v. Davis, 133 So.3d 1101 , 1105 n.6 (Fla. 3d DCA 2014) (citing Peters v. State, 984 So.2d 1227, 1230 (Fla. 2008)); see also Brown v. State, 18 So.3d 723, 723-24 (Fla. 4th DCA 2009). 1 Yet, in cases where the State bore the burden to prove the prerequisites for enhanced sentencing in non-capital cases, hearsay has been held inadmissible absent an exception.

2014For example, cases have uniformly held hearsay is admissible at a probation revocation hearing, which has been described as a "deferred sentencing proceeding.” Peters v. State, 984 So.2d 1227, 1230 (Fla.2008) (citing Green v. State, 463 So.2d 1139, 1140 (Fla.1985)).

2016See Laffitte v. State, 16 So.3d 315, 316 (Fla. 3d DCA 2009) (“ ‘A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.’ Salvatierra v. State, 691 So.2d 32 (Fla. 3d DCA 1997) (citing Narvaez v. State, 674 So.2d 868 (Fla. 2d DCA 1996); Snell v. State, 658 So.2d 1165 (Fla. 2d DCA 1995)).”).

2009“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.” Salvatierra v. State, 691 So.2d 32 (Fla. 3d DCA 1997) (citing Narvaez v. State, 674 So.2d 868 (Fla. 2d DCA 1996); Snell v. State, 658 So.2d 1165 (Fla. 2d DCA 1995)).

2009See Morris v. State, 727 So.2d 975, 977 (Fla. 5th DCA 1999).

2008In doing so, the Fifth District followed its decisions in Arndt v. State, 815 So.2d 674 (Fla. 5th DCA 2002), Young v. State, 742 So.2d 418 (Fla. 5th DCA 1999), and Morris v. State, 727 So.2d 975 (Fla. 5th DCA 1999).

2008But in Soca v. State, 673 So.2d 24 (Fla. 1996), the Florida Supreme Court held that the evidence obtained in a warrantless search of a probationer's residence by a probation supervisor, although tipped-off and accompanied by a police investigator, was admissible in a probation revocation hearing, even though it would not be admissible in the criminal case unless that search met all the usual constitutional search and seizure requirements. 673 So.2d at 25 .

2008But in Soca v. State, 673 So.2d 24 (Fla. 1996), the Florida Supreme Court held that the evidence obtained in a warrantless search of a probationer's residence by a probation supervisor, although tipped-off and accompanied by a police investigator, was admissible in a probation revocation hearing, even though it would not be admissible in the criminal case unless that search met all the usual constitutional search and seizure requirements. 673 So.2d at 25 .

2006That holding was based on the conclusion that the probation revocation hearing did not trigger double jeopardy protection; the defendant "was not placed in jeopardy in the probation revocation hearing." Id. at 179.

1984State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983).

2003Gammon v. State, 778 So.2d 390 (Fla. 2d DCA 2001); Soto v. State, 727 So.2d 1044 (Fla. 2d DCA 1999).

2000See, e.g., Render v. State, 755 So.2d 653, 654 (Fla. 4th DCA 1998); Hall v. State, 744 So.2d 517, 520-21 (Fla. 3d DCA 1999); Soto v. State, 727 So.2d 1044, 1046 (Fla. 2d DCA 1999).