Criminal Defense
Since 1993
Since 1993
VOP for Change of Address Overturned
“Believe none of what you hear, and half of what you see.” Benjamin Franklin (I think)
Unfortunately, violations of probation are fairly easy to prove, but there are a few rules that must be followed. First and foremost, a violation cannot be based solely upon hearsay. There are entire books written on the concept of hearsay, of which the first chapter would bore you to tears. At the risk of losing you on such details, let me just say that hearsay involves a person quoting someone who is not present in court. So, you can’t convict someone of violating probation by telling the judge that “Someone told me that the probationer did something”. As basic as this may seem, you may be surprised to find that judges, probation officers, and prosecutors do not understand this age old concept. To prove this to you, we’re going to take a look at the recent case of Mullins v. State, 2015 Fla. App. LEXIS 13553 (Fla. 2nd DCA Sept. 11, 2015).
Mr. Mullins was found guilty of violating his probation in two ways: (1) he failed to obtain the consent of his probation officer before changing his residence, and (2) he gave false information to his probation officer regarding his actual residence. Yes, this is two violations for the price of one relocation. Mullins’ violation began as so many others do–with a probation officer’s surprise home visit. (Yes, you were thinking a positive drug test, and that’s probably first on the list, with surprise visits running a distant second place)
When Mullins’ probation officer arrived at his residence, the owner of the home answered the door. Mr. Mullins was not there. Now, he’s not required to be there 24/7, so that’s not a problem. The problem was that the home owner told the probation officer that Mr. Mullins did not live there. Ops.
At the violation hearing, the prosecutor called the probation officer to testify, and the officer explained her discussion with the home owner. Now, based upon our two sentence review of the hearsay rule listed above, this sort of testimony is clearly hearsay. Let’s face it, the probation officer has no clue as to whether or not Mr. Mullins actually lived at the home, she only knows what she was told. What she was told was hearsay, and should not have been used to find Mr. Mullins guilty of violating his probation. I have no doubt that Mullins’ defense attorney objected to this testimony as hearsay, however, such testimony is permissible in a violation of probation hearing–even though it cannot be the basis for the violation. Sure, there’s more to it than that, but hang in there with me.
The VOP judge found Mullins in violation for changing his residence, and giving probation false information as to his residence, even though the only evidence presented was the hearsay testimony of the probation officer. So, that’s why Mullins appealed his violation. As to these issues, Mullins won his appeal, with the appellate court holding that “the hearsay testimony of the probation officer was insufficient to establish that Mr. Mullins had moved from the residence. We therefore strike that part of the revocation order finding that Mr. Mullins violated condition three of his probation by changing his residence without the permission of his probation officer and condition nine by failing to truthfully respond to his probation officer when he reported his permanent residence.” Id.
After all these years, something as simple as the hearsay rule was overlooked by both a trained (I presume) prosecutor and the judge handling this violation of probation. Going into this violation hearing, the prosecutor had to know that there wasn’t going to be sufficient evidence to prove that Mullins changed his residence. To prove such, the prosecutor needed to call the home owner to testify. It’s sad that such basic concepts must to go through the appellate process to be corrected. But on the bright side, one of the nice things about this appeal was the fact that the Attorney General’s Office recognized this hearsay problem right away, and conceded defeat immediately. At least someone knows what they’re doing.