Cerny v. State
65 So. 3d 609
| Fla. Dist. Ct. App. | 2011Background
- Cerny pleaded guilty in four circuit court cases and received 18–36 months' probation, all to run concurrently.
- On Aug. 5, 2009, probation officer filed an affidavit alleging four new-law violations based on a July 29, 2009 incident with his father.
- Circuit court dismissed some alleged violations for lack of proof and found aggravated battery supported, revoking probation on all four cases.
- Maximum five-year prison terms were imposed on underlying felonies, with some sentences ordered to run consecutively, totaling twenty years.
- On appeal, Cerny argues the State did not prove aggravated battery by a preponderance and relied on hearsay evidence.
- Special concurrence notes potential prima facie issues and concerns about double jeopardy timing and caseload extensions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the State prove the new-law violation by a preponderance of the evidence? | Cerny contends aggravated battery was not proven. | State maintains proof supported a revocation finding. | No; aggravated battery not proven by preponderance. |
| Was hearsay improperly used to prove revocation? | Hearsay relied upon; credibility issues unresolved. | Hearsay allowed in probation hearings but cannot be sole proof. | Erroneous reliance on hearsay alone; insufficient proof. |
| Did the circuit court err in revoking probation based on this violation? | State failed to establish a crime occurred. | Evidence, though imperfect, supported a revocation. | Reversed for lack of competent, substantial evidence. |
| Is double jeopardy a bar to remand for a new revocation based on same facts? | Remand permissible if probation terms not expired. | Remand barred if terms expired or challenged. | Remanded; double jeopardy not a bar under terms not expired. |
| Should the standard of review be abrogated to require prima facie proof? | Probation revocation standard requires prima facie evidence. | Preponderance suffices; not always prima facie. | Preponderance standard governs; prima facie not always required. |
Key Cases Cited
- Robinson v. State, 907 So. 2d 1284 (Fla. 2d DCA 2005) (preponderance standard for revocation; not required to prove criminal conviction)
- Gaddy v. State, 23 So. 3d 1258 (Fla. 2d DCA 2009) (competent, substantial evidence required in revocation; hearsay limits)
- Boyd v. State, 1 So. 3d 1186 (Fla. 2d DCA 2009) (abuse of discretion standard; necessity of prima facie evidence in some contexts)
- Reeves v. State, 366 So. 2d 1229 (Fla. 2d DCA 1979) (double jeopardy considerations in revocation remands)
- Scott v. State, 937 So. 2d 746 (Fla. 4th DCA 2006) (remand viability; procedural constraints in multiple cases)