Violation of Probation and Hearsay

          It has long been the law in Florida that a person's probation cannot be violated based solely upon hearsay.  This particular rule of law was at issue in the case of Lewis v. State of Florida which was decided in 2008 by Florida's Fourth District Court of Appeal.

          In the Lewis case, Monica Lewis was initially placed on probation for the crime of felony petit theft.  However, Ms. Lewis's probation officer later filed an affidavit of violation of probation alleging that Lewis had been arrested twice while on probation and that she had failed to provide her probation officer with that information when asked.

          In attempting to prove that Ms. Lewis had in fact violated the conditions of her probation, the prosecutor presented the following evidence at Lewis's probation violation hearing:

• The orders of supervision in Lewis's case;
• A written monthly probation report; and
• An arrest affidavit which stated that Lewis had stolen merchandise valued at over $259.00 from Home Depot.

          Lewis's most recent probation officer also testified to the following at that same hearing:

• She speculated that Ms. Lewis's prior probation officer had instructed Lewis about her probationary conditions;
• She was not present when Lewis had allegedly signed the monthly probation report that was admitted into evidence;
• Lewis told her that she had not been arrested;
• The probation officer had reviewed a police report which stated that Lewis had been arrested.  However, she was not physically present when that arrest occurred; and
• She discovered that Lewis had a pending charge in Dade County.

          Not surprisingly, given all this evidence, the judge deciding the case ruled that Lewis had indeed violated her probation and sentenced her to three years in prison.

          On appeal, however, the appellate court that reviewed Ms. Lewis's case ruled that the lower-court judge erred when he held that Lewis had violated her probation because "only hearsay evidence was presented to prove [that Lewis] had been arrested for new charges.  The probation officer based her testimony on supposition, the probable cause affidavit, and the court file.  She had no personal knowledge of the alleged new arrest."

         Although Ms. Lewis won her case on appeal, her victory may be short-lived.  That is because the court of appeal sent her case back to the trial court with instructions that the prosecutor could once again try to prove that Lewis violated her probation as long as her probationary term had not yet expired.