ANGELO BRESILE v. THE STATE OF FLORIDA

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 3, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-424 Lower Tribunal No. F06-18578 ________________

Angelo Bresile, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.

Before EMAS, SCALES, and HENDON, JJ.

HENDON, J. Angelo Bresile (“Bresile”) appeals from a final order of revocation of

probation and an order imposing sentence. We affirm.

The Department of Corrections filed an amended violation of probation

affidavit, asserting that Bresile violated his probation by failing to live without

violating any law by committing the offense of sexual battery on a minor.

After the affidavit was filed, Bresile’s alleged victim, L.K., recanted her

accusations against him.

During the violation of probation hearing, L.K. testified that she made

up the “story” about Bresile because she was mad at him. Without objection,

the State introduced three recorded statements—the 911 call placed by

L.K.’s mother; the detective’s interview of L.K.; and the detective’s interview

of L.K.’s mother. In the 911 call, L.K.’s mother stated she was having

difficulty understanding her eight year old daughter because she was crying,

but her daughter told her that Bresile either put his penis to her mouth or in

her mouth. The mother confirmed that the person the 911 operator could

hear crying was L.K. In the recorded statement to the detective, L.K. stated

that Bresile put his “private part” in her mouth. Finally, in the recorded

statement of the detective’s interview of L.K.’s mother, the mother stated that

L.K. told her that Bresile put his penis in her (L.K.) mouth. Further, without

objection, L.K.’s mother and the nurse practitioner with the Child Protection

2 Team who examined L.K. also testified as to statements L.K. made indicating

that Bresile put his penis in her mouth.

At the hearing, the DNA analyst at the Miami-Dade Crime Laboratory

testified as to Bresile’s penile swab. Bresile’s penile swab was presumptive

positive for saliva, with a mixture of DNA profiles consisting of three

contributors. She was able to obtain a partial male major contributor from

the mixture, and because the swab was of an intimate body part, she could

presume that the male profile originated from Bresile. In addition, there were

two minor contributors, although she could not identify their gender or DNA

profile.

Following closing argument, the trial court stated it did not believe L.K.

lied to the police detective because her statement was detailed, and the trial

court listened to the 911 call and could hear L.K. sobbing. Moreover, the trial

court stated that it believes L.K. testified in court as she did because her

mother probably told her to testify that way. The trial court ruled that the

State established by a preponderance of the evidence that Bresile violated

his probation. The trial court entered a final order of revocation of probation,

and thereafter, entered an order sentencing Bresile. Bresile’s appeal

followed.

3 Bresile argues that the trial court erred by admitting L.K.’s hearsay

statements. We disagree.

“Hearsay evidence is admissible in violation of probation hearings and

can sustain a violation when corroborated by direct evidence.” Clarington v.

State, 314 So. 3d 495, 503 (Fla. 3d DCA 2020) (quoting Robertson v. State,

800 So. 2d 338, 339 (Fla. 3d DCA 2001)); see also McDoughall v. State, 133

So. 3d 1097, 1099 (Fla. 4th DCA 2014) (“Hearsay is admissible at a

revocation of probation hearing. However, [t]he law is clear that a person’s

probation cannot be revoked solely on the basis of hearsay evidence. The

hearsay must be corroborated by non-hearsay.”) (internal citations omitted).

In this appeal, Bresile also argues that the trial court’s finding that the

State established by a preponderance of the evidence that he willfully and

substantially violated his probation is not supported by competent,

substantial evidence. We disagree.

L.K.’s hearsay statements presented to the court during the violation

of probation hearing, coupled with the corroborating non-hearsay testimony

provided by the analyst regarding the presumptive positive findings of saliva

on Bresile’s penile swab, are sufficient to sustain the trial court’s finding that

the State established by a preponderance of the evidence that Bresile

4 violated his probation. Accordingly, we affirm the order of revocation of

probation and the sentencing order entered by the trial court.

Affirmed.