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

APPELLATE DIVISION

 

 

WILLIAM T. JAHOSKY,       

                        Appellant,

v.

 

STATE OF FLORIDA,                                           Case No: 0701719CFAWS

                        Appellee.                                            Lower No: 072108MMAWS           

________________________/

 

Appeal from Pasco County Court

 

County Judge Candy Morris Vandercar

 

Frank D. L. Winstead, Esq. 

for Appellant

 

Devin Jones, Esq. A.S.A. 

for Appellee

 

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.

While appellant 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 (Fla. 1st DCA 2006).  However, as argued by appellee, the appellant overlooks the additional evidence presented in the form of the appellant’s admissions to the officer, along with the appellant’s own testimony, which tied the appellant to the crime and is competent, admissible evidence showing that the new offense occurred. Although he testified he acted in self defense, the judge simply did not believe him. When sitting as the trier of fact, the trial judge has the "superior vantage point to see and hear the witnesses and judge their credibility." Guzman v. State, 721 So.2d 1155, 1159 (Fla.1998), cert. denied, 526 U.S. 1102, 119 S.Ct. 1583, 143 L.Ed.2d 677 (1999).  Thus, so long as its decisions are supported by competent, substantial evidence, an appellate court will not substitute its judgment for that of the trial court on  the credibility of the witnesses and the weight to be given to the evidence.  Id.

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 (Fla. 5th DCA 2006), the Fifth District Court of Appeal held that Crawford does not apply to revocation of supervised release hearings. The circuit court, when acting in its appellate capacity, must follow the precedent of another district court of appeal where that court has decided the legal issue facing the circuit court and its own district court of appeal has not yet ruled on the issue. Omni Ins. Co. v. Special Care Clinic, Inc., 708 So. 2d 314 (Fla. 2d DCA 1998).   

Therefore, it is,

            ORDERED AND ADJUDGED that the decision of the trial court is AFFIRMED.   

            DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of ________, 2008.

 

                                                                                    ______________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    __________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

Copies furnished to;

 

Frank D. Winstead, Esq.

Bryan Sarabia, Esq. ASA