BAILEY v. STATE (2020)

Randy L. Bailey appeals from an order revoking his probation. The State concedes that the trial court improperly revoked probation based solely on hearsay evidence. We agree and reverse.

The State filed an affidavit alleging that Mr. Bailey violated several conditions of his probation. This included an allegation that Mr. Bailey violated condition three by changing his residence without his probation officer's consent. The revocation affidavit recited that Mr. Bailey's neighbor and girlfriend told the probation officer that Mr. Bailey had moved.

The trial court held a violation of probation hearing. Mr. Bailey's probation officer was the sole witness to testify for the State. He explained that he attempted to visit Mr. Bailey at his home address on one occasion, but he was unable to make contact because there was no answer when he knocked on the door. Mr. Bailey's neighbor informed him that she had not seen Mr. Bailey for at least a week. Mr. Bailey's girlfriend called the officer that same day and confirmed that Mr. Bailey had moved out “around a week before that date.”

The State presented no additional evidence. Mr. Bailey testified that he had not moved from his residence at any point during the term of his probation. At the conclusion of the hearing, the trial court revoked Mr. Bailey's probation, concluding that he violated condition three.¹ This was error.

Competent substantial evidence must support a finding of a willful and substantial violation of probation. See Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013). Hearsay evidence, by itself, is insufficient to revoke probation. See Rowan v. State, 696 So. 2d 842, 843 (Fla. 2d DCA 1997). Instead, additional nonhearsay evidence is required to establish a willful and substantial violation. Id. (“A revocation of probation based on changing a residence without obtaining consent of the probation officer may be upheld if it is based on hearsay coupled with some other non-hearsay evidence.”).

The fact that the probation officer was unable to make contact with Mr. Bailey at his home does not prove that Mr. Bailey moved. See Gary v. State, 987 So. 2d 180, 181 (Fla. 2d DCA 2008). Further, the hearsay statements of Mr. Bailey's neighbor and girlfriend indicating that Mr. Bailey had moved away are, by themselves, legally insufficient to support the revocation of his probation. See id. (holding that hearsay testimony from probationer's daughter that probationer was no longer living at his approved residence was legally insufficient to support a revocation of probation). Accordingly, we reverse the revocation order and sentence.

Reversed.

FOOTNOTES

1.   We also note that the written revocation order erroneously states that Mr. Bailey admitted to violating probation and was found to have violated conditions two, three, five, seven, and ten. The trial court's oral pronouncement only found Mr. Bailey to be in violation of condition three. “When a conflict exists between an oral revocation pronouncement and the written order revoking probation, the oral pronouncement will control.” Thompson v. State, 965 So. 2d 1250, 1251 (Fla. 1st DCA 2007).

SILBERMAN, Judge.

MORRIS and SMITH, JJ., Concur.