Friday, April 29, 2016

Violation of Probation

          On April 21, 2016, the Florida Supreme Court granted review of the Second District Court of Appeals decision in Queior v. State, 157 So.3d 370 (Fla. 2DCA 2015) on the issue of whether a Probation Officer’s testimony that a probationer has failed a drug test administered by the Probation Officer is competent, non-hearsay evidence for purposes of proving a violation of probation.   
          In Queior, the State sought to revoke the defendant’s probation of the basis of a positive drug test.  At the hearing on the violation of probation, the State offered testimony from the defendant’s probation officer that they personally administered the drug test and that the test read positive.  The defense objected to the testimony claiming that the State had failed to lay the proper predicate to establish the reliability of the field drug test.  The trial court revoked the defendant’s probation.
          The defendant appealed, and the Second District Court of Appeal reversed the trial court’s revocation on the grounds that the probation officer’s testimony was not competent, non-hearsay evidence.  The Florida Supreme Court held that a probation officer’s testimony that a probationer has failed a field drug test administered by the probation officer is competent, non-hearsay testimony and can be relied upon in a revocation hearing.

Criminal Sentencing

          On April 28, 2016, the Florida Supreme Court granted review of the Fourth District Court of Appeals decision in Norvil v. State, 162 So.3d 3 (Fla. 4DCA 2014) on the issue of whether a trial court can consider a subsequent arrest without conviction during sentencing for the primary offense.   
           In Norvil, the defendant was charged with one count of armed burglary of a dwelling.  The defendant entered an open plea to the bench, and during sentencing, the State filed a Sentencing Memorandum requesting that the court consider a subsequent charge of burglary of a vehicle that was still pending.  Over the defense’s objection, the trial court announced that it was going to consider the pending charge and declined to sentence defendant to a Youthful Offender sentence and instead sentenced him to twelve-years in prison.
          On appeal, the issue before the Court was whether the trial court violated the defendant’s due process rights by considering a subsequent arrest without conviction.  The Florida Supreme Court held that “a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.”