Frederick Bryant v. The State of Florida

• Court: District Court of Appeal of Florida
• Decided: May 22, 2024
• Docket: 2023-0183
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 22, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-183 Lower Tribunal No. F21-377A ________________

Frederick Bryant, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch, Judge.

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

Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.

Before FERNANDEZ, GORDO and LOBREE, JJ.

PER CURIAM. Frederick Bryant (“Bryant”) appeals the trial court’s order revoking his

probation and imposing sentence. We have jurisdiction. Fla. R. App. P.

9.030(b)(1)(A). For the following reasons, we reverse.

Bryant entered a plea of nolo contendere to aggravated assault with a

firearm, a third degree felony. The trial court withheld adjudication of guilt

and placed him on probation for two years. A few months later, Bryant’s

probation officer filed an affidavit of violation of probation, which was later

amended. In the amended affidavit, Bryant’s probation officer alleged that

Bryant violated his probation by (1) failing to live without violating any law by

committing the offense of armed robbery with a firearm or deadly weapon on

October 18, 2022; 1 (2) failing to pay drug testing fees; (3) failing to complete

an anger management course; and (4) failing to complete a firearm safety

course.

The trial court conducted a violation of probation hearing. During the

hearing, the trial court heard testimony from Bryant’s probation officer and

the police officer who responded to the scene and investigated the armed

robbery. The victims of the armed robbery did not testify. The State

presented hearsay evidence as to Bryant’s failure to live without violating any

law. The hearsay evidence, however, was not corroborated by non-hearsay

1 The State “no-actioned” the case due to lack of victim cooperation.

2 evidence. Further, during the hearing, Bryant’s probation officer conceded

that Bryant still had more time to pay the drug testing fee and to complete

the anger management and firearm safety courses.

At the conclusion of the hearing, the trial court ruled that Bryant violated

his probation, and sentenced Bryant to two years in prison, with credit for

time served, followed by six months of probation. The written order of

revocation of probation provides that Bryant violated his probation by failing

to live without violating any law by committing the offense of armed robbery

with a firearm, failing to pay drug testing fees, failing to complete an anger

management course and failing to complete a firearm safety course.

Bryant’s appeal followed.

We review the trial court’s revocation of probation under an abuse of

discretion standard. See Russell v. State, 982 So. 2d 642, 646 (Fla. 2008)

(stating that an appellate court “reviews the trial court’s revocation [of

probation] under an abuse of discretion standard”).

Bryant contends the non-hearsay evidence was legally insufficient to

support a violation of probation for committing the new law offense of armed

robbery with a firearm. We agree.

Hearsay evidence that would be inadmissible during a trial is

admissible in a probation revocation hearing to prove a violation of probation.

3 Russell, 982 So. 2d at 646. “However, the hearsay evidence may not form

the sole basis for revocation.” Id. “The hearsay evidence must be supported

by non-hearsay evidence.” Id.; see also Clarington v. State, 314 So. 3d 495,

503 (Fla. 3d DCA 2020) (“Hearsay evidence is admissible in violation of

probation hearings and can sustain a violation when corroborated by direct

evidence.” (quoting Robertson v. State, 800 So. 2d 338, 339 (Fla. 3d DCA

2001))); Hall v. State, 744 So. 2d 517, 520 (Fla. 3d DCA 1999) (“The law is

clear that a person’s probation cannot be revoked solely on the basis of

hearsay evidence.”).

Based on our independent review of the evidence presented during the

revocation of probation hearing, we agree with Bryant’s assertion that there

was insufficient non-hearsay evidence to support a violation of probation for

committing the new law offense of armed robbery with a firearm. 2

Accordingly, we reverse the portion of the revocation order finding that

Bryant violated his probation by failing to live without violating any law by

committing the offense of armed robbery with a firearm.

2 During the hearing, the State attempted to introduce a surveillance video obtained near the bathroom where a gun was recovered in the trash can. The trial court sustained the defense’s objection to the introduction of the video based on lack of authentication. Therefore, our independent review does not include review of the surveillance video. Further, although a gun was found in the bathroom trash can, there is nothing in the record before us to link the gun to Bryant.

4 Next, Bryant argues the written order of revocation of probation cannot

stand because it does not comport with the trial court’s oral ruling. We agree.

A review of the transcript of the violation of probation hearing reflects

that the trial court’s ruling that Bryant violated his probation was based solely

on Bryant failing to live without violating any law. The trial court did not

address the three other alleged violations—failing to pay drug testing fees,

failing to complete an anger management course and failing to complete a

firearm safety course. Moreover, during the violation of probation hearing,

Bryant’s probation officer conceded that Bryant still had time to complete

these conditions. Thus, the portion of the revocation order reflecting that

Bryant violated his probation based on these three conditions must be

reversed.

Reversed and remanded.