In IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE, No. SC10-1471 (Fla. Sep. 23, 2010) the Court promulgated minor changes to the rules of criminal procedure to reflect recent statutory changes.
In DREYER v. STATE, No. 2D07-3903 (Fla. 2d DCA Sep. 22, 2010), at a restitution hearing, the only evidence offered by the State to establish the amount of restitution was hearsay. The DCA held that when the amount of restitution is in dispute, as in this case, the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim's loss. When a defendant objects to hearsay evidence at a restitution hearing, the hearsay evidence is inadmissible to prove the amount of restitution. It is improper for a witness to offer hearsay testimony regarding determinations of value that the witness received from other people.
In M.A.R. v. STATE, No. 2D09-5200 (Fla. 2d DCA Sep. 22, 2010), the DCA held the mandatory sentencing provisions in §§ 316.1935(5) and (6) Florida Statutes (2008) do not apply to juveniles. Therefore adjudication of delinquency and driver's license revocation were not required in a juvenile proceeding for the offenses of fleeing or eluding a law enforcement officer and aggravated fleeing or eluding. The court reasoned that adult sanctions are not applicable to juvenile proceedings unless the legislature makes them expressly applicable. No clear legislative mandate exists requiring §§ 316.1935(5) and (6) apply to juvenile proceedings.
In DOUGLAS v. STATE, No. 4D09-3833 (Fla. 4th DCA Sep. 22, 2010), the Defendant was on probation when he was alleged to have committed a robbery. His VOP hearing occurred before the trial for the new offense. The trial court found that the Defendant had proven the violation and sentenced the Defendant. At a subsequent trial the jury found that the Defendant had not committed the robbery. In a postconviction motion, the Defendant sought a new VOP hearing and asked that the trial court reconsider the VOP sentence in light of the alleged "newly discovered" evidence adduced at the robbery trial.
The DCA held that the law is well-settled that, because different standards of proof apply, a violation of probation can be based on criminal conduct for which a defendant is subsequently acquitted by a jury. In a jury trial, the State must prove the offense beyond a reasonable doubt, whereas in a VOP proceeding, the State need merely prove the violation by a greater weight of the evidence. The Defendant's claim, however, relates to the weight of the evidence and the fairness and reliability of the outcome of his VOP proceeding, not to the sufficiency of the evidence to support revocation. The Defendant's subsequent acquittal for the robbery does not necessarily prevent the State from meeting its burden of proving a VOP. But, the fact that evidence was sufficient to support a VOP does not preclude a claim that newly discovered evidence entitles the Defendant to a new VOP hearing.
Evidence which develops after a VOP hearing can support a postconviction claim of newly discovered evidence, and a defendant can be entitled to new VOP hearing when the new evidence would probably produce a different result. To establish a claim of newly discovered evidence warranting a new VOP hearing, a defendant must show: (1) that the evidence was unknown by the trial court, by the party, or by counsel at the time of the VOP hearing and that neither the defendant, nor his counsel, could have discovered the evidence with the exercise of due diligence; and (2) that the newly discovered evidence is of such a nature that it would probably produce a different result in a new VOP hearing.
In two cases, DURRANCE v. STATE, No. 4D08-2498 and HICKS v. STATE, No. 4D08-2505 (Fla. 4th DCA Sep. 22, 2010), the 4th DCA held that when the state attorney discloses that it possesses written or recorded statements of the defendant, it has fulfilled its obligation under Fla. R. Crim. P. 3.220(b)(1) and is not required to disclose the substance of the statement, or what part of a recorded statement it intends to use at trial.
