Florida Third District Court of Appeal – Criminal Headnotes – April 4, 2018
TERRENCE JEFFERSON V. STATE OF FLORIDA – ADMISSIBILITY OF “HEARSAY” DUPLICATIVE OF LIVE WITNESS TESTIMONY; SUFFICIENCY OF EVIDENCE
Direct appeal from conviction and sentencing for attempted armed sexual battery and for armed false imprisonment.
The defendant argued that the trial court had erred in allowing “hearsay” testimony of a detective who interviewed the victim and a 911 caller the day after the incident. The appeals court rejected this argument, finding the detective’s testimony, which did not identify the defendant as the offender, merely duplicative of testimony of the victim and of the 911 caller. The defendant’s argument that the detective’s testimony improperly “bolstered” the testimony of the victim and the 911 caller was not preserved for appeal.
The defendant also argued that the trial court had erred in denying his motion for a judgment of acquittal on the attempted sexual battery charge. The appeals court rejected this argument, finding that the evidence, including the defendant’s own post-Miranda statements, considered in a light most favorable to the state, was sufficient for the jury to consider whether Defendant attempted to sexual battery of the victim.
ANDRES AMBROSIO DUQUESNE V. STATE OF FLORIDA – PROBATION REVOCATION; SUFFICIENCY OF EVIDENCE
Appeal from revocation of probation and sentencing for prior conviction of burglary of an unoccupied vehicle and third-degree grand theft.
Within two months of his release from prison on the underlying charges, the defendant’s probation officer reported that he had violated several conditions of the probation: failing to report to the probation officer, changing his residence without prior consent, and absconding, as well as two instances of further criminal activity, for which charges were then pending.
The defendant argued that the alleged violations with respect to reporting to the probation officer, changing residence, and absconding all related to the fact that he was homeless. The appeals court acknowledged that “a homeless probationer may find it challenging to report to his probation officer as directed,” but said “homelessness alone does not justify or excuse” a complete failure to report.
On appeal, the state conceded that it had not introduced evidence on one of the pending criminal cases, and the appeals court instructed the trial court on remand to strike its findings as to that case. While there was evidence to support a finding on the other criminal case, the appeals court found that the state had not introduced evidence to establish the value of the item alleged to have been stolen, and instructed the trial court on remand to correct its order to reflect a petit theft rather than a grand theft.
Finally, the defendant argued that the trial court had abused its discretion in finding that he had violated a condition of probation requiring him to “enter and complete” a recidivism prevention program. The appeals court agreed, noting that the stated condition was that the defendant “complete” the program at least three months prior to the end of the two-year probation, which might still have occurred. On remand, the trial court was instructed to strike its finding that the defendant had violated this condition.
Nonetheless, the appeals court found, there was sufficient evidence to support the trial court’s finding that the defendant had willfully and substantially violated the terms of his probation.
Affirmed and remanded with directions.