Bel5-49 CENED. AN c. IN THE. L.T. Case No.: F A. TITUS L. HENLEY, Petitioner. 3rd DCA Case No.: 3DIT-753. STATE OF FLORIDA, Respondent.

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1 CENED AN c. IN THE Bel5-49 SUPREME COURT OF FLORIDA TITUS L. HENLEY, Petitioner Vs. BY 3rd DCA Case No.: 3DIT-753 L.T. Case No.: F A STATE OF FLORIDA, Respondent. PETITIONER'S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, Third District State of Florida

2 TABLEOFCONTENTS TABLE OF CONTENTS...ii TABLE OF CITATIONS...iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 JURISDICTIONAL STATEMENT... 3 ARGUMENT...4 The Decision of the District Court of Appeal in this case expressly and directly conflicts with the decision in Melton v. State, 65 So.3d 96 (Fla. 1" DCA 2011); Johnson v. State, 962 So.2d 394, (Fla. 2"d DCA 2007); Blair v. State, 805 So.2d 877 (Fla. 2nd DCA 2001); and J.F. v. State, 889 So.2d 132 (Fla. 4* DCA 2004) CONCLUSION...6 CERTIFICATE OF SERVICE... 6 CERTIFICATE OF COMPLIANCE

3 TABLE OF CITATIONS Cases...Pages Blair v. State, 805 So.2d 877 (Fla. 2 d DCA 2001)...ii, 3, 4, 5 J.F. v. State, 889 So.2d 132 (Fla. 4th DCA 2004)...ii, 3, 4, 5 Johnson v. State, 962 So.2d 394, (Fla. 2"d DCA 2007)...ii, 3, 4, 5 Melton v. State, 65 So.3d 96 (Fla. 1" DCA 2011)...ii, 3, 4, 5 Court Rules Fla.R.App.P (9)(2)(A)(iv)...3 Constitutional Provisions and Statutes Art. V, 3(b)(3) Fla. Const. (1980)... 3

4 STATEMENT OF THE CASE AND FACTS On June 24, 2008, the Petitioner entered a plea of nolo contendre to charges of organized scheme to defraud, grand theft, fraudulent use of identification, exploitation of the elderly, and forgery in exchange for a sentence of five years probation. On November 19, 2009, the State filed an amended affidavit of violation of probation stemming from new charges in case number F A. The State did not call the alleged victim Katherine Hepburn in to testify, the bank employees from Wachovia who investigated her account and made the determination that the checks were stolen and stamped stolen on the checks, and no handwriting specialist to testify that the handwriting on the checks were in fact the Petitioners. The evidence the State presented to prove the new offenses at the revocation hearing was testimony from Regine Baptiste denying she ever received, endorsed, or deposited any checks. The State also presented returned checks stamped stolen, insufficient funds and signature not on file, deposit tickets, pay stubs, driver's licenses, loan application, notarized form and saving account application. These documents derived from an alleged crime that took place before the Petitioner was placed on probation and are also dated prior to the order placing the Petitioner on probation but were admitted into evidence as business records and an exception to the hearsay rule. 1

5 At the conclusion of the hearing, the trial court found the Petitioner in violation of his probation on counts 10-20, grand theft, uttering a forged instrument and cashing or depositing a check with intent to defraud. And that the State had j submitted the preponderance of evidence to show that the Petitioner committed the offenses charged. On June 4, 2010, the trial court held a sentencing hearing on the probation violation. At that time, the State asked to rescind the oral determination that the Petitioner had violated count 10, grand theft and the Petitioner agreed to the State's request and sentenced the Petitioner to counts 11-20, uttering a forged instrument and cashing or depositing a check with intent to defraud to 48 months followed by 5-years probation. An appeal was filed on Feb 2, 2011, the Third District Court affirmed the trial court's decision stating they found "competent, substantial evidence to establish a willful violation of substantial conditions of his probation predicated on counts in case number F A." And that "hearsay evidence is admissible at a probation revocation hearing as long as it is not the only evidence relied upon to revoke probation." Rehearing was denied on December 4, 2012, and the Petitioner Notice to Invoke Discretionary Review of this court was filed January 2"d,

6 SUMMARY OF THE ARGUMENT In this case, the District Court of Appeal held that hearsay evidence is admissible at probation revocation hearing as long as it is not the only evidence relied upon to revoke probation. The decision of the Third District Court of Appeal cannot be reconciled with previous decisions of other districts in Melton v. State, 65 So.3d % (Fla. 1" DCA 2011); Johnson v. State, 962 So.2d 394, (Fla. 2nd DCA 2007); Blair v. State, 805 So.2d 877 (Fla. 2"d DCA 2001); and J.F. v. State, 889 So.2d 132 (Fla. 4th DCA 2004), where the courts held that probation may be revoked based on a combination of hearsay and non-hearsay evidence but when the State seeks to revoke probation based on the commission of new offenses, it is required to present direct, non-hearsay evidence linking the Defendant to the commission of the offense at issue. Thus, the Petitioner contends that the decision of the 3'd District Court expressly and directly conflicts with previous decision of other district courts. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a District Court of Appeal that expressly and directly conflicts with a decision of another District Court of Appeal on the same point of law. Art. V, 3(b)(3) Fla. Const. (1980); Fla.R.App.P (9)(2)(A)(iv). 3

7 ARGUMENT The Decision of the District Court of Appeal in this case expressly and directly conflicts with the decision in Melton v. State, 65 So.3d 96 (Fla. l'' DCA 2011); Johnson v. State, 962 So.2d 394, (Fla. 2nd DCA 2007); Blair v. State, 805 So.2d 877 (Fla. 2"d DCA 2001); and J.F. v. State, 889 So.2d 132 (Fla. 4th DCA 2004). The Third District Court of Appeal held that hearsay evidence is admissible at probation revocation hearing as long as it is not the only evidence relied upon to revoke probation. As explained previously, the decision of the Third District Court conflicts with the decision of other District Courts holding that while probation may be revoked based on a combination of hearsay and non-hearsay evidence, but when the State seeks to revoke probation based on the commission of new offenses, it is required to present direct, non-hearsay evidence linking the Defendant to the commission of the offense at issue. The Petitioner respectfully submits that this court should grant discretionary review and resolve the conflict by quashing the decision of the District Court. In the decision, of the Third District Court, it was affirmed because competent, substantial evidence was adduced to establish that the Petitioner willfully violated substantial conditions of his probation predicated on counts 11-20, uttering a forged instrument and cashing or depositing a check with intent to 4

8 defraud. Thus, the District Court has expressly held that there must be evidence in the record to support a finding that any violation was willful and substantial and that hearsay evidence is admissible at probation revocation hearing as long as it is not the only evidence relied upon to revoke probation. The District Court decision is in direct conflict with the decisions of other District Courts such as in Melton v. State, 65 So.3d 96 (Fla. 1"* DCA 2011); Johnson v. State, 962 So.2d 394, (Fla. 2"d DCA 2007); Blair v. State, 805 So.2d 877 (Fla. 2"d DCA 2001); and J.F. v. State, 889 So.2d 132 (Fla. 4th DCA 2004), wherein the courts expressly stated that probation may be revoked on a! combination of hearsay and non-hearsay evidence, but when the State seeks to revoke probation based on the commission of new offenses the state must present: Direct non-hearsay evidence linking the Defendant to the commission of the offense at issue, all the essential elements of the alleged new crime; if the State fails to do so revocation is improper. The other District Courts made conflicting decisions in Melton v. State, (Fla. l ' DCA); Johnson v. State, (Fla. 2"d DCA); J.F. v. State, (Fla. 4th DCA); and Blair v. State, (Fla. 2"d DCA). And this court should reaffirm those decisions by accepting discretionary review and quashing the contrary decision of the Third District Court of Appeal. 5

9 CONCLUSION This court has discretionary jurisdiction to review the decision of the Third District Court, and this court should exercise that jurisdiction to consider the merits of the Petitioner's argument. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of this brief has been furnished to the Third District Court of Appeal by United States Mail, this 9 day of /prerr, CERTIFICATE OF COMPLIANCE Henley, DÊ# M64194 Dade Correctional Institution S.W. 377th Street Florida City, Florida I HEREBY CERTIFY that this brief complies with the font requirement of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. /S/ ituf Henley, # M

10 2 5 / G 9 e 1 T e

11 Eljírb 7JBístritt Court of Rppeal State of Florida, July Term, A.D Opinion filed September 27, Not final until disposition of timely filed motion for rehearing. No. 3D Lower Tribunal No A Titus Henley, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo, Judge. Carlos J. Martinez, Public Defender, and Kathryn Strobach, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attomey General, for appellee. Before WELLS, C.J., and SHEPHERD and SALTER, JJ. WELLS, Chief Judge.

12 Titus Henley appeals from an order revoking his probation. While we affirm the revocation, finding that there is competent, substantial evidence to support it, we reverse portions of the order on review because (1) the State has properly agreed that the order as written, in part, does not conform to the record below or to the lower court's oral pronouncements and (2) the order is predicated in part on claims abandoned by the State below. On June 24, 2008, Henley entered a plea of nolo contendere to charges of organized fraud, grand theft in the second degree, fraudulent use of identification, exploitation of the elderly, and forgery by use of a credit card in exchange for a sentence of five years of probation. In November of 2009, the State filed an amended affidavit of violation of probation stemming from new charges in three separate case numbers: F , M and F A. Specifically, in case number F , the State charged Henley with attempted burglary. In case number M , the State charged Henley with trespass of an occupied structure. And, in case number F A, the State charged Henley with: six counts of grand theft in the third degree (Counts I-VI); one count of fraudulent use or possession of personal identification with intent to fraudulently use (Count VII); one count of exploitation of the elderly/disabled 1 The State notes in its Initial Brief that case number F is "most likely a scrivener's error and should actually [have] been a different case number 'F '"

13 (Count VIII); one count of grand theft in the second degree (Count X); five counts of cashing or depositing an item with intent to defraud (Counts XI-XV); and five counts of uttering a forged instrument (Count XVI-XX).2 During the revocation hearing held on June 1, 2010, the State announced that it would not proceed on the attempted burglary and trespass charges in case numbers F and M As to the remaining case, F A, the State announced that it would not proceed on Counts I-VIII, leaving only Counts X-XX as the basis for revocation of Henley's probation. At the conclusion of the hearing, the trial court orally found that Henley had violated his probation on these remaining counts. On June 4, 2010, the trial court held a sentencing hearing on the probation violation. At that time, the State asked the court to rescind its oral determination that Henley had violated Count X for grand theft in the second degree. Henley agreed to this request and the trial court orally sentenced Henley on Counts XI-XX in case number F A to forty-eight months in prison, to be followed by five years of probation. Despite the State's abandonment of many of its claims against Henley and its request that Henley not be found to have violated Count X of F A, the written order entered below found that Henley had violated his probation, as specified in the amended affidavit of violation of probation, by 2 The State did not allege a violation of probation for the charge of obtaining a mortgage or promissory note by false representation (Count IX). 3

14 having committed all of the offenses described in case numbers F , M and F A. This appeal ensued. As the State properly concedes, because the order under review does not conform to the lower court's oral pronouncement regarding Count X of F A, we must reverse that portion of the order and remand with instructions that it be stricken. See Salvatierra v. State, 691 So. 2d 32, 32 (Fla. 3d DCA 1997) ("A written order of probation revocation must conform to the court's oral 3pronouncement at a defendant's probation revocation hearing."). We also reverse those portions of the order predicated on the violations alleged in F and M , and on Counts I-VIII in F A, as those claims were all abandoned by the State before the revocation hearing commenced. We do, however, find that competent, substantial evidence was adduced to establish that Henley willfully violated substantial conditions of his probation predicated on counts XI-XX in case number F A. See Harris.v. State, 898 So. 2d 1126, 1127 (Fla. 3d DCA 2005) ("[T]here must be evidence in the record to support a finding that any violation was willful and substantial." (quoting Rubio v. State, 824 So.2d 1020, 1021 (Fla. 5th DCA 2002))); see also Thompson v. State, 994 So. 2d 468, 471 (Fla. 3d DCA 2008) ("Hearsay evidence is admissible at probation revocation hearings as long as it is not the only evidence relied upon to revoke probation.").

15 We therefore affirm in part and reverse in part and remand this matter with instructions.