SMITH v. STATE (2003)

Appellant, Quinton C. Smith, appeals his conviction and sentence following his revocation of probation hearing.   The trial court found by a preponderance of the evidence that appellant willfully and substantially violated the terms and conditions of his probation based on various counts charged.   We affirm appellant's conviction and sentence in all respects except count III, which we strike since it was based solely on hearsay evidence.

Count III of the amended affidavit of violation of probation charged that appellant violated his probation by knowingly associating with a person engaged in criminal activity.   That count alleged that appellant was in a vehicle driven by Lizcha Ruff, who was on probation and was driving with a suspended license.   Other than the probation officer's hearsay testimony that appellant associated with Ruff, a convicted felon, there was no other evidence supporting such violation.

Hearsay evidence, while admissible in probation revocation proceedings, cannot constitute the sole basis for a finding of violation of probation.   See Sagner v. State, 776 So.2d 1088 (Fla. 4th DCA 2001);  see also Render v. State, 755 So.2d 653 (Fla. 4th DCA 1998).

Affirmed;  remanded to trial court to strike count III as a basis for revoking appellant's probation.

SHAHOOD, J.

WARNER and TAYLOR, JJ., concur.