Russell v. State

982 So. 2d 642, 2008 WL 1901666
CourtSupreme Court of Florida
DecidedMay 1, 2008
DocketSC06-335
StatusPublished
Cited by65 cases

This text of 982 So. 2d 642 (Russell v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. State, 982 So. 2d 642, 2008 WL 1901666 (Fla. 2008).

Opinion

982 So.2d 642 (2008)

Anthony K. RUSSELL, Petitioner,
v.
STATE of Florida, Respondent.

No. SC06-335.

Supreme Court of Florida.

May 1, 2008.

*643 James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, and Pamela J. Koller and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, Florida, for Respondent.

QUINCE, J.

Petitioner Anthony Russell seeks review of the decision of the Fifth District Court of Appeal in Russell v. State, 920 So.2d 683 (Fla. 5th DCA 2006), on the ground that it expressly and directly conflicts with a decision of the Fourth District Court of Appeal in Santiago v. State, 889 So.2d 200 (Fla. 4th DCA 2004), and the Second District Court of Appeal in Colwell v. State, 838 So.2d 670 (Fla. 2d DCA 2003), and Colina v. State, 629 So.2d 274 (Fla. 2d DCA 1993), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we approve the decision of the Fifth District Court of Appeal in Russell, disapprove the decision of the Fourth District Court of Appeal in Santiago, and disapprove the decisions of the Second District Court of Appeal in Colwell and Colina to the extent that they are inconsistent with this opinion. We hold that the decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), is not applicable to probation revocation proceedings and that the trial court properly revoked Russell's probation.

FACTS AND PROCEDURAL BACKGROUND

Anthony Kalick Russell pled guilty in 2002 to one count of carrying a concealed firearm. In January 2003, the trial court withheld adjudication and placed him on two years' probation. In November 2003, Russell pled guilty to a charge of sexual battery upon a child under the age of *644 sixteen. The court sentenced him as a youthful offender to 365 days in the county jail followed by five years of sex offender probation, with the composite sentence to run concurrently with his existing probation. On October 1, 2004, a notice of violation of probation was filed alleging that Russell failed to report and submit written monthly reports, failed to perform his fifty hours of public service, and failed to make payments towards his court costs and fines.

On October 14, 2004, Marion County Sheriff's Deputy Raymond Torrellas was dispatched to a gas station in response to a battery call, where he met Russell's girlfriend, Nicole D'Alessandro. She told the deputy what had just transpired and wrote out a statement. Russell was arrested later that evening and charged with aggravated battery on a pregnant person. On October 20, 2004, an addendum to the October 1 notice of violation was filed to include the alleged battery as a violation of probation. Russell denied the battery allegation and demanded a hearing.

Russell's Probation Revocation Hearing

At the July 15, 2005, probation violation hearing, the victim did not testify and Deputy Torrellas related the above version of the incident. The detective testified that the victim seemed nervous and scared when he arrived some ten minutes after the call. He observed a red mark on the back of the victim's neck that was consistent with her story. Although Polaroid pictures of the bruise had been taken, they were not presented at the hearing. Over objections on the ground of hearsay within hearsay, the State introduced a copy of the victim's handwritten statement, which stated the following:

Anthony Russell (my boyfriend) and me Nicole D'Alessandro were going to vacuum my car before I take him to his sex offenders class. We were fighting [at the BP] about me not dropping him off. He wanted to go by himself and I said no because I had things to do. So we kept fighting and as I told him no as I turned around and he hit me in the back of the neck and I went to grab my key out of the car & he pulled me back & pulled my hair. So I got away & ran to the BP & he pulled off w/ my car.

Trial counsel further objected that use of the statement would violate Russell's Sixth Amendment right to confrontation. The trial judge responded that it could be "quadruple hearsay" and still be admissible in a probation violation hearing, but it could not be the sole basis to find a violation.

The detective further testified that he arrested Russell that evening and read him his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He stated that Russell did not initially want to make any statement but, nonetheless, began a conversation en route to the jail. The detective testified that Russell admitted knowing that the victim was pregnant, but said that he did not believe that he was the baby's father. Russell also told the detective that he does not hit the victim, "he just roughs her up." On cross-examination, the detective admitted that his police report did not mention the reading of Miranda rights or Russell's knowledge of the victim's pregnancy. The detective said that he remembered this particular arrest because Russell cried on the way to the station.

Russell testified at the hearing regarding the missing probation reports and his failure to make scheduled payments toward his court costs, but he invoked his Fifth Amendment right regarding the battery allegation. In closing, trial counsel argued that the reporting and financial violations were neither willful nor substantial. *645 As to the battery violation, trial counsel raised Crawford v. Washington as an objection to the admission of the victim's written statement. Counsel also argued that the State failed to present a prima facie case of battery on a pregnant woman, contending that the victim was admittedly not visibly pregnant and that Russell's acknowledgement of the pregnancy should be suppressed because it was questionable whether he had even been read his Miranda rights.

The court found Russell guilty of the battery violation by the greater weight of the evidence and found him not guilty of all other allegations of violation. The court emphasized that "absolutely no weight" was given to the victim's written statement. The court stated that it relied upon both hearsay and non-hearsay and found the officer's testimony to be credible. The court adjudicated Russell guilty of the 2003 sexual battery charge and sentenced him to fifteen years on that charge and five years on the 2001 weapons charge. On July 20, 2005, Russell was acquitted of the battery charge in a jury trial. The court rendered its final order of violation of probation on July 26, 2005. Soon thereafter, the court denied Russell's motion to mitigate the sentence based on the acquittal.

Russell appealed to the Fifth District, which affirmed the revocation. Russell v. State, 920 So.2d 683 (Fla. 5th DCA 2006). The Fifth District acknowledged contrary authority in Santiago, Colwell, and Blair v. State, 805 So.2d 873 (Fla. 2d DCA 2001), but it held that its decision was controlled by its prior ruling in Arndt v. State, 815 So.2d 674 (Fla. 5th DCA 2002), where it found the hearsay statement of the victim coupled with the officer's observation of injury sufficient to prove a probation violation. This Court granted review based on the express and direct conflict.

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Bluebook (online)
982 So. 2d 642, 2008 WL 1901666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-state-fla-2008.