COTE v. STATE (2019)

Appellant, Lucas Cote, appeals the judgment and sentence entered after the trial court found that he had violated his probation. He contends that it was error to find that a willful violation of probation occurred where the only evidence concerning the violation was hearsay. The State concedes error. We agree that error occurred below and reverse and remand for further proceedings.

Appellant entered pleas in four separate cases. He was sentenced to eighteen months in prison, followed by twelve months of community control and twelve months of drug offender probation. Because Appellant violated probation more than once, the trial court modified his probation to include the successful completion of a residential rehabilitation program. Accordingly, Appellant was admitted into that program and, less than one month later, he was unsuccessfully discharged for fighting with another patient. Because of this fight, Appellant's probation officer filed an affidavit alleging a violation of probation and arrested Appellant.

At the violation of probation hearing, the State called Appellant's probation officer as its only witness. The probation officer testified that she was notified that Appellant was unsuccessfully discharged from the treatment program after physically fighting with another patient. She admitted, however, that she did not witness the altercation, she did not speak with anyone involved in the fight, she had no knowledge about whether Appellant willfully engaged in the fight or whether he was the aggressor, and she did not create the report that she relied on for her testimony.

“To establish a violation of probation, the state must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Johnson v. State, 880 So. 2d 749, 750 (Fla. 5th DCA 2004). In proving that a violation of probation occurred, the State may rely on hearsay evidence. Boyd v. State, 1 So. 3d 1186, 1187 (Fla. 2d DCA 2009). However, hearsay “cannot be the sole evidence used to find a violation.” Id.

Here, the probation officer's hearsay testimony was the only evidence establishing that Appellant was involved in the altercation and that he willfully violated his probation by being unsuccessfully discharged from the treatment program. This evidence, by itself, was insufficient to establish that Appellant willfully violated the terms of his probation. See Lewis v. State, 995 So. 2d 1123, 1125 (Fla. 4th DCA 2008) (reversing violation of probation where probation officer's hearsay testimony was only evidence showing willful violation and she had no personal knowledge of the new arrest that formed the basis of the violation). Therefore, we reverse the judgment and sentence. On remand, the State may file a second affidavit of violation of probation based on the same incident if Appellant's probationary period has not expired. See Boyd, 1 So. 3d at 1188 (explaining “that double jeopardy does not preclude a second revocation hearing based on the filing of a new affidavit alleging the same violation”); Purvis v. State, 420 So. 2d 389, 389 (Fla. 5th DCA 1982) (recognizing that reversal of an order revoking probation because only hearsay evidence was presented below “does not present constitutional double jeopardy problems”).

REVERSED and REMANDED.

PER CURIAM.

WALLIS, EISNAUGLE and HARRIS, JJ., concur.