County Criminal Court: CRIMINAL LAW – Probation – Evidence sufficient to justify order revoking probation where there was evidence other than hearsay evidence in the form of the appellant’s own admissions and testimony. Additionally, Crawford does not apply to revocation of supervised release hearings. Order revoking probation affirmed. Jahosky v. State, CRC 070179CFAWS, (Fla. 6th Cir. App. Ct. August 22, 2008).
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY
WILLIAM T. JAHOSKY,
Appellee. Lower No: 072108MMAWS
County Judge Candy Morris Vandercar
Frank D. L. Winstead, Esq.
Devin Jones, Esq. A.S.A.
ORDER AND OPINION
THIS MATTER is before the Court on the appellant, WILLIAM JAHOSKY’S, appeal of the trial court's order revoking appellant’s probation. After reviewing the briefs and record, this Court AFFIRMS the trial court’s decision.
On June 25, 2007, an affidavit of violation of probation was filed alleging that appellant violated his probation by committing the crime of domestic battery. On December 4, 2007, appellant’s jury trial on the charge of domestic battery was held. This charge was the sole basis for the affidavit of violation of probation. The jury found appellant not guilty of battery or any lesser offense.
Three days later, a violation of probation hearing was held. Appellant testified that his wife had him arrested for domestic battery but that he was found not guilty. He explained why he was arrested. He testified that an instant message came up on the computer and they were both trying to get to the computer. He was asked if at that time he touched her against her will and he testified that he did not know if it was against her will but said “ I know she was touching me against mine.” He was asked if he remembered testifying at the trial that he grabbed her hair and grabbed her arm, and he said that he did, “[t]rying to get her off of me.” He said that he did not remember testifying that it was against her will. He acknowledged that it was his contention that she was climbing on his back and that the computer desk was on his toe at the time. He explained “[s]he was climbing on my back. I grabbed her wrist to try to get her off of me. And at that time when she was—when I was getting her off of me, the computer desk went up on my toe and I was in so much pain, I tried to move to get it off of it. And I think I might have pulled her hair then.”
Deputy Jude testified that when he arrived at the house, the appellant was sitting on the front porch and appellant was bleeding on his big toe. When he saw the wife, she was shaking, nervous, upset, and stated that she was in fear of him. The victim told him that appellant grabbed her and held her back or pulled her away from the computer. The deputy testified that the victim’s hair was disheveled and she said the appellant actually grabbed her by the hair to pull her away from the computer. The appellant told the deputy that he lost it and he was jealous and he was only trying to get to the computer to tell the subject to stay away from his wife.
At the end of his investigation the deputy determined that the injuries and comments were consistent with the wife being on the computer and the appellant trying to get to the computer and that he held her back. The deputy went on to say that appellant’s own statements were that he initially initiated the physical contact and he was the primary aggressor. At the conclusion of the probation revocation hearing, the judge revoked appellant’s probation.
acknowledges that hearsay evidence is admissible in probation revocation
proceedings, he argues that hearsay alone is insufficient to establish a
violation of a condition of probation. Stewart v. State, 926 So. 2d 413 (
Appellant also argues
that the Sixth Amendment right to confrontation under Crawford v. Washington,
541 U.S. 36 (2004) should apply to probationers at revocation of probation
hearings. In Russell v. State, 920 So.2d
683, 685 (
Therefore, it is,
ORDERED AND ADJUDGED that the decision of the trial court is AFFIRMED.
DONE AND ORDERED in Chambers, at New
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to;
Frank D. Winstead, Esq.
Bryan Sarabia, Esq. ASA