JAMES JUSTIN CHANNELL, Aрpellant, v. STATE OF FLORIDA, Appellee.
CASE NO. 1D15-3859
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
October 4, 2016
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
J. Scott Duncan, Judge.
Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Jillian H. Reding, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Appellant appeals his judgment and sentence imposed following a hearing at which the trial court determined Appellant had violated his probation. We revеrse.
On March 12, 2015, Appellant entered a negotiated plea of nolo contendere to the charge of child abuse without causing great bodily harm, permanent disability, or permanent disfigurement. He was sentenced to sixty days in jail followed by three years of probation. As a condition of his probation, Appellant was instructed tо wear an active Global Positioning System (“GPS”) ankle bracelet that would permit the probation office to monitor his daily movements, since he was prohibited from entеring into certain areas of the surrounding neighborhood where the victim resided. For this purpose, Appellant not only received the ankle bracelet, but also a hand-held monitor with which he could call the probation office and receive calls from the monitoring center should there be an alert. On April 14, 2015, the state filed an elеven-count affidavit alleging ten counts of Appellant’s having violated condition (10) of his probation for failing to submit to electronic monitoring, as evidenced by “bracelet gone” alerts received by the GPS monitoring company and reported to the probation office, and a violation of condition (9) for Appellant’s failing to have complied with all instructions given by his probation officer. Following an evidentiary hearing, the trial court found Appellant guilty of violating only four of the counts conсerning the “bracelet gone” alerts and entered an order to that effect. It then sentenced Appellant to eleven months and fifteen days in jail with credit for time sеrved, plus two years of community control to be followed by two years of probation.
On appeal, Appellant argues the state’s evidence was insufficient tо prove the violations because it was based solely on hearsay. To be exact, Appellant claims the state did not lay the proper foundation for the introduction of the GPS notes from which his probation officer testified to account for the “bracelet gone” alerts. We concur. It is axiomatic that “[h]earsay is admissible in a probation or community control violation proceeding, but probation or community control may not be revoked solely on the basis of hearsay evidence.” Ruise v. State, 43 So. 3d 885, 886-87 (Fla. 1st DCA 2010) (citing Smith-Curles v. State, 24 So. 3d 702, 702-03 (Fla. 1st DCA 2009)). “Revocation may, however, be based solely upon hearsay evidence that falls within an exception to the hearsay rule.” Id. at 887 (citing Thomas v. State, 711 So. 2d 96, 97 (Fla. 4th DCA 1998)). Accord Eveland v. State, 189 So. 3d 990, 991-92 (Fla. 2d DCA 2016); Edwards v. State, 60 So. 3d 529, 531 (Fla. 2d DCA 2011).
In Ruise, the only evidence the state presented in support of the allegation that Ruise was away from his residence was GPS data from the monitoring device he was required to wear as a condition of his community control. We held the data was “clearly hearsay” because it purported to show Ruise’s locations on a particular date, and it was being offered for the truth of the matter asserted, i.e., to prove that Ruise was in the location away from his residence as reflected in the GPS data. 43 So. 3d at 886; see also
In the present case, the probatiоn officer testified regarding the “bracelet gone” alerts from notes she had compiled from information received from the monitoring company. The state, however, did not have a witness from the monitoring company to testify that the alerts had actually occurred or to authenticate the notes from which the probation officer had testified. Such a witness would have been vital to proving a “business record” exception to the hearsay rule as contemplated in
The circumstancеs in the present case, rather, compare more favorably to those in Edwards, in which “[t]he affidavit of violation asserted that Edwards failed to follow the instructions of his prоbation officer and violated a condition of his probation by failing to remain near his personal tracking device, thereby causing
The circuit court found that Edwards violated the conditions of his probation that required him to follow his probation officer’s orders and to submit to electronic monitoring. Both of these violations were grounded on the “bracelet gone” alerts, but the only evidence of the alerts was hearsay. No one from Pro Tech [the monitoring company] estаblished that the alerts occurred or was present to authenticate the report as a business record.
Id. at 531. The Second District contrasted those facts with the ones in Ruise and concluded that while hearsay evidence, such as the report submitted from the monitoring company, was admissible at a probation revocation hearing, it imрermissibly formed the sole basis of the decision to revoke. Id. (citing Cuciak v. State, 410 So. 2d 916, 918 (Fla. 1982)). Consequently, it reversed the revocation of Edward’s probation because “the report was hearsаy and all the evidence about Edward’s violation stemmed from the report.” Id. Accord Eveland, 189 So. 3d at
Appellant also argues that the state failed to prove his violations were willful and substantial. We agree with this сontention, too. As was true in Edwards, here the record shows the alerts were typically cleared within a reasonable time. Nor was there evidence of “‘intentional disrеgard of the GPS monitoring rules, tampering with the equipment, or actual violations of curfew or other activity restrictions [that] will generally amount to willful and substantial violations of the conditions imposed.’” 60 So. 3d at 532 (quoting Correa v. State, 43 So. 3d 738, 745 (Fla. 2d DCA 2010)); see also Eveland 189 So. 3d at 993. As the Second District said in Edwards, “if the rules violations result from ‘equipment problems or the subject’s unintentional failure to operate equipment properly,’ such noncomрliance does not rise to the level of a willful and substantial violation of probation.” 60 So. 3d at 532 (quoting Correa, 43 So. 3d at 745). Similarly, in the present case, we have determined that the evidence did not rise to the quantum of proof necessary to
For the reasons just expressed, we REVERSE the order of revocation of probation and REMAND for further proceedings.
B.L. THOMAS, WINOKUR, and JAY, JJ., CONCUR.