James Justin Channell v. State of Florida , 200 So. 3d 247 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JAMES JUSTIN CHANNELL, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-3859
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed October 4, 2016.
An appeal from the Circuit Court for Escambia County.
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 reverse.
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 to 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
entering 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 eleven-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 concerning 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 served, plus two years of community control to be followed by two
years of probation.
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On appeal, Appellant argues the state’s evidence was insufficient to 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 § 90.801(1)(c), Fla. Stat. (2014) (defining hearsay as “a statement,
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other than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted”). We nonetheless affirmed
because we concluded the state had laid a proper predicate under section
90.803(6)(a), Florida Statutes (2014)—the business records exception to the hearsay
rule—by presenting the testimony of an employee of the monitoring company who
explained how the electronic monitoring system operated and how the GPS data
from Ruise’s monitoring device was compiled into a computer database that the
probation officer could access to track Ruise’s location. 43 So. 3d at 887.
In the present case, the probation 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 section 90.803(6)(a). Therefore, we hold the facts in Ruise to be
distinguishable.
The circumstances 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 probation officer and violated a condition of his
probation by failing to remain near his personal tracking device, thereby causing
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multiple ‘bracelet gone’ alerts . . . .” 60 So. 3d at 530. The probation officer who
signed the affidavit averred that she had learned of the alerts from the monitoring
company. However, no representative of the monitoring company testified at the
revocation hearing. The records were introduced at the hearing through a probation
specialist, but the evidence showed they actually had been compiled and maintained
by the company. The probation officer, an electronic monitoring coordinator with
the probation office, testified she printed out the reports from the company and
determined whether a situation required an officer’s attention. The Second District
Court of Appeal noted:
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]
established 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
impermissibly 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 hearsay and all the evidence about
Edward’s violation stemmed from the report.” Id. Accord Eveland, 189 So. 3d at
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992 (holding, “[b]ecause the State failed to lay a predicate for the records, either
through the testimony of a custodian, stipulation, certification, or declaration, the
monitoring records [regarding the “bracelet gone” alerts] were hearsay”). Likewise,
we conclude that revocation of Appellant’s probation must be reversed given that
the state failed to lay a proper foundation for the evidence of Appellant’s alleged
violations under the business records exception to the hearsay rule, and because all
of the evidence concerning Appellant’s alleged violations stemmed from hearsay.
Appellant also argues that the state failed to prove his violations were willful
and substantial. We agree with this contention, 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 disregard 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 noncompliance 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
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demonstrate Appellant willfully and substantially violated his probation. Even the
trial court referred to Appellant’s behavior as being in most instances merely
“careless.”
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.
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