State v. Scott

626 A.2d 817, 31 Conn. App. 660, 1993 Conn. App. LEXIS 287
CourtConnecticut Appellate Court
DecidedJune 22, 1993
Docket11412
StatusPublished
Cited by23 cases

This text of 626 A.2d 817 (State v. Scott) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Scott, 626 A.2d 817, 31 Conn. App. 660, 1993 Conn. App. LEXIS 287 (Colo. Ct. App. 1993).

Opinion

Daly, J.

The defendant appeals from the trial court’s judgment revoking the defendant’s probation after finding that the defendant violated the terms of his probation. The defendant claims that the trial court improperly (1) determined that the defendant violated his probation without having before it the original or a certified copy of the judgment of conviction and sentence, (2) relied on a trial court clerk’s order informing the office of adult probation that the defendant is on probation in lieu of the original or certified copy of the judgment of conviction, (3) found that the defendant had signed the document containing the conditions of probation, (4) determined that the defendant violated his probation because the evidence was not sufficient to support such a finding, and (5) relied on documents from Florida. We affirm the judgment of the trial court.

The defendant’s probation revocation hearing was held on February 5, 1992. At the outset, the defendant objected on the ground that the court file did not contain a copy of the original judgment of conviction and sentence.1 The objection was overruled and the [662]*662state produced Hilda Nieves of the office of adult probation as the only witness. Nieves testified that her office was assigned the defendant’s case by way of an “Order Placing on Probation” which was prepared by the clerk’s office, signed by an assistant clerk and forwarded to Nieves’ office. Over the defendant’s objection, this order was entered into evidence under the business records exception to the hearsay rule as evidence for the purpose of establishing the defendant’s original conviction and sentence. The trial court also ruled that this evidence was admissible because hearsay is admissible in probation revocation hearings. A copy of the conditions of probation was then introduced into evidence without proof that the defendant was the signatory of the document. The state produced other documents2 demonstrating that Ezekial Scott had been convicted of selling cocaine in Florida during the period of the defendant’s probation. The Ezekial Scott referred to in the Florida documents had the same date of birth as does the defendant. Nieves also testified that, according to the defendant’s probation file, the defendant had met with probation officer Adele Ibsen on September 8, 1988, and had signed a “Conditions of Probation” form enumerating the conditions of his probation. This document was admitted over the defendant’s hearsay and relevancy objections. Nieves testified that in January, 1989, she inherited the defendant’s case from Ibsen.

The trial court found that the defendant had failed to comply with the following four of the five general conditions of his probation: (1) “Do not violate any criminal law of the United States, this state or any other state”; (2) “Report as a Probation Officer directs [663]*663and permit the officer to visit you as circumstances require”; (3) “Keep the officer informed of your whereabouts and give immediate notice of any change in address or employment”; and (4) “Do not leave the State of Connecticut without permission.”

I

The defendant claims that before the trial court could find that he had violated the conditions of his probation, it was necessary that evidence of the original or a certified copy of the judgment of conviction and sentence be admitted into evidence. “General Statutes § 53a-32 (b) provides that no revocation of probation shall be ordered, ‘except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.’ . . . ‘All that is required for revocation of probation is that the court be satisfied that the probationer has abused the opportunity given him to avoid incarceration. . . .’’’(Citation omitted.) Payne v. Robinson, 10 Conn. App. 395, 402, 523 A.2d 917 (1987), aff’d, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). The defendant contends that the trial court lacked subject matter jurisdiction to hear this matter because the record was not “whole” within the meaning of § 53a-32 (b) where no original or certified copy of the judgment of conviction was in evidence. The defendant also argues that the probation order offered to prove the defendant’s conviction and sentence was not “reliable and probative evidence.” We disagree.

Turning to the defendant’s first argument, we note that “[t]he primary purpose of a probation revocation proceeding is to determine whether the defendant is complying with the terms of his probation.” State v. Baxter, 19 Conn. App. 304, 321, 563 A.2d 721 (1989). “ [Revocation is a continuing consequence of the original conviction from which probation was granted . . . [664]*664and the inherent authority to convict and sentence a defendant flows from the authority to adjudicate a criminal cause of action, the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information.” (Citation omitted; internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 306, 610 A.2d 1147 (1992). Thus, the trial court’s jurisdiction to decide this matter was not contingent on the court’s having before it either the original or a certified copy of the judgment of conviction and sentence.

As to the defendant’s second argument, we are not persuaded that only the original or a certified copy of the judgment of conviction and the sentence is “reliable and probative evidence” of the defendant’s conviction. “As the trier of fact, the court was charged with determining the credibility of the witnesses and the effect to be given the evidence. See State v. Egan, 9 Conn. App. 59, 69, 514 A.2d 493, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). If the record supports the trial court’s finding that the defendant failed to comply with the conditions of his probation, the trial court then had the discretion to order a revocation of the probation.” State v. Johnson, 11 Conn. App. 251, 258, 527 A.2d 250 (1987). We will not disturb the findings of the trial court absent an abuse of discretion. Id.

To prove a conviction, it is necessary to establish the existence of a valid final judgment. There is no statute that provides that the only admissible evidence of a conviction and sentence is that of the original or a certified copy of the conviction and sentence. The trial court had before it the testimony of Nieves and the probation order itself. It found the probation order to be reliable and probative evidence of the defendant’s conviction and sentence. We find that the trial court did not abuse its discretion by relying on the evidence produced.

[665]*665II

The defendant next claims that the trial court improperly admitted into evidence under the business records exception to the hearsay rule; General Statutes § 52-180; the order of the Superior Court placing the defendant on probation.

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Bluebook (online)
626 A.2d 817, 31 Conn. App. 660, 1993 Conn. App. LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scott-connappct-1993.