Kevin R. Laing v. State , 200 So. 3d 166 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
KEVIN R. LAING,
Appellant,
v. Case No. 5D15-3978
STATE OF FLORIDA,
Appellee.
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Opinion filed June 24, 2016
Appeal from the Circuit Court
for Orange County,
Alan S. Apte, Judge.
Robert L. Sirianni, Jr. and Matthew R.
Mclain, of Brownstone, P.A., Winter Park,
for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marjorie Vincent-Tripp,
Assistant Attorney General, Daytona
Beach, for Appellee.
EDWARDS, J.
Kevin R. Laing appeals his conviction for violation of probation based upon his
alleged submission of false driving logs. Laing argues that his conviction should be
reversed because it was based solely on hearsay evidence. We agree and reverse.
In 2007, Laing pleaded guilty as charged to sexual battery, exposure of sexual
organs, and battery. He was adjudicated guilty and sentenced to fifteen years of
supervised sex offender probation. In July 2015, the State filed an affidavit alleging that
he violated the terms and conditions of his probation by falsifying his required monthly
driving logs, failing to properly document his driving destinations, and lying to his
probation officer about those same logs. At the violation of probation hearing, Probation
Officer McDonough testified that he advised Laing that the terms and conditions of his
probation required Laing to maintain and submit accurate monthly driving logs. Laing
was also required to wear a 3M GPS ankle bracelet, which was supposed to track his
location and movements.
A 3M representative testified that the 3M electronic monitoring system consisted
of an ankle bracelet, worn by Laing, and a small transmitter, similar to a cell phone, which
would send signals to 3M’s monitoring equipment. The monitoring equipment used GPS
to record Laing’s location and movements. The 3M representative indicated that he
provided the State and Laing with login information that would allow them to access
Laing’s locations on specific dates and times. The State did not prepare an exhibit
identifying Laing’s location with the data reported by the 3M electronic monitoring system
or attempt to introduce a printout of the 3M GPS data as a business record.
Probation Officer Patty Ciuzio testified that she assumed supervision of Laing after
McDonough. When she reviewed Laing’s driving logs, she learned that none of Laing’s
entries matched the reported 3M GPS data. Officer Ciuzio admitted that she had no
personal knowledge of Laing’s whereabouts and solely relied upon the 3M GPS data.
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Laing denied any wrongdoing and testified that his driving logs were accurate. At
the close of the evidence, Laing moved to dismiss the charges because hearsay was the
sole basis to prove that he falsified his driving logs. The court denied his motion and
convicted Laing of violating the terms and conditions of his probation by falsifying his
driving logs for June 2015 through July 2015. The court dismissed the other alleged
violations. Laing’s probation was revoked and he was sentenced to 180 months in prison
with credit for 200 days of time served.
Probation may be revoked only if there is a willful violation of a substantial condition
of probation. Lawson v. State, 969 So. 2d 222, 230 (Fla. 2007). The State must prove
the violation “by the greater weight of the evidence.” Del Valle v. State, 80 So. 3d 999,
1012 (Fla. 2011) (citing State v. Carter, 835 So. 2d 259, 261 (Fla. 2002)). A trial court’s
determination that a probationer willfully and substantially violated a term or condition of
his probation must be supported by competent, substantial evidence. See Moses v.
State, 107 So. 3d 1224, 1224 (Fla. 5th DCA 2013).
The only evidence tending to prove that Laing violated his probation by falsely
reporting his driving logs was the testimony of Officer Ciuzio. Officer Ciuzio did not have
personal knowledge of Laing’s whereabouts that contradicted the locations reported in
the driving logs. On the critical issue of whether Laing was accurately logging and
reporting his driving and destinations, Ciuzio could only repeat to the court the information
that she obtained from the 3M electronic monitoring system. The 3M GPS data were
offered to prove the truth of the matter asserted, namely that Laing was at the specific
GPS locations reported by 3M at particular times on particular dates. This is definitive
hearsay. See § 90.801(1)(c), Fla. Stat. (2015). No effort was made to utilize any
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exception to the hearsay rule. Without the hearsay evidence, namely the 3M GPS data,
there is no proof that Laing falsified his driving logs. A probation revocation cannot be
based solely on hearsay. See, e.g., Arndt v. State, 815 So. 2d 674, 675 (Fla. 5th DCA
2002) (holding that hearsay alone was insufficient to support a revocation of probation).
Accordingly, we reverse Laing’s conviction for violation of probation and instruct
the lower court to vacate the judgment and sentence.
REVERSED AND REMANDED.
SAWAYA and TORPY, JJ., concur.
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