133 So. 3d 1097
Fla. Dist. Ct. App.2014Background
- McDoughall was placed on three years' probation for possession of oxycodone and marijuana, with a condition prohibiting new crimes.
- During a traffic stop he was arrested after officers discovered his license was suspended and, during a vehicle inventory, approximately 150 pills in the center console.
- The responding officer testified the pills were oxycodone based on a Poison Control call and a lab report (neither the lab report nor a lab witness were introduced into evidence).
- At the VOP hearing the trial court relied on the officer’s identification (over a hearsay objection) and also found McDoughall violated probation by driving with a suspended license.
- The court revoked probation and imposed concurrent five-year prison terms; McDoughall appealed challenging the sufficiency of the drug-identification evidence and preservation of the hearsay objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pills were properly identified as illegal drugs where identification rested on lab report/Poison Control information | The State argued the officer’s testimony identifying the pills as oxycodone was admissible hearsay at a VOP and sufficient | McDoughall argued the officer’s identification was uncorroborated hearsay and insufficient to prove drug possession/trafficking | Court held the officer’s identification was hearsay and, uncorroborated, insufficient to support revocation for drug offenses |
| Whether a probation revocation may rest solely on hearsay evidence | State relied on admissibility of hearsay at VOP hearings | McDoughall argued probation cannot be revoked solely on hearsay absent corroboration by non-hearsay evidence | Court reiterated that hearsay is admissible but cannot be the sole basis for revocation; non-hearsay corroboration required |
| Whether McDoughall preserved his hearsay objection | State argued objection was untimely and not preserved | McDoughall contended he objected during direct exam and renewed the objection at closing, preserving the issue | Court held the sufficiency challenge was preserved because the objection was raised at the VOP hearing and renewed at closing |
| Whether revocation stands despite invalid grounds and whether resentencing/written order required | State argued revocation valid because there was also a proven violation (driving with suspended license) | McDoughall argued reversal needed because drug-based findings were improper and the court failed to enter a written revocation order specifying violated condition | Court affirmed revocation based on the valid suspended-license violation but remanded for a written revocation order and resentencing based solely on that violation |
Key Cases Cited
- Russell v. State, 982 So.2d 642 (Florida 2008) (hearsay admissible at VOP hearings)
- Hall v. State, 744 So.2d 517 (Fla. 3d DCA 1999) (probation cannot be revoked solely on hearsay)
- J.F. v. State, 889 So.2d 130 (Fla. 4th DCA 2004) (hearsay must be corroborated by non-hearsay at VOP)
- Forbes v. State, 38 So.3d 232 (Fla. 3d DCA 2010) (insufficient to support revocation where identification rested on unintroduced lab report)
- Lewis v. State, 995 So.2d 1123 (Fla. 4th DCA 2008) (similar principle regarding uncorroborated hearsay at VOP)
- Whitehead v. State, 22 So.3d 846 (Fla. 4th DCA 2009) (single violation can support revocation)
- Lee v. State, 67 So.3d 1199 (Fla. 2d DCA 2011) (revocation can be affirmed where record shows court would have revoked on proper grounds alone; remand for corrected order)
- Robinson v. State, 74 So.3d 570 (Fla. 4th DCA 2011) (trial court must enter formal written revocation order)
- Wilson v. State, 967 So.2d 1107 (Fla. 4th DCA 2007) (remand for resentencing when record does not show judge would have imposed same sentence based on fewer violations)