Full Opinion

FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Case No. 5D2025-3795 LT Case No. 2023-101646-CFDL _____________________________ SHANE ROBERT MARSHALL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Volusia County. Kathleen McNeilly, Judge. Matthew J. Metz, Public Defender, and Gregg R. Brennan. Assistant Public Defender, Daytona Beach, for Appellant. James Uthmeier, Attorney General, Tallahassee, and Zachary Wiseman, Assistant Attorney General, Daytona Beach, for Appellee. October 5, 2026 KILBANE, J. Shane Robert Marshall (“Appellant”) appeals his judgment and sentence revoking his probation, adjudicating him guilty, and sentencing him to 364 days in jail. On appeal, he asserts the trial court erred in revoking his probation without any non-hearsay evidence of a violation. We reverse. Facts Appellant was charged by information with felony battery, domestic battery by strangulation, and criminal mischief. In March 2024, Appellant pleaded nolo contendere to the lesser- included charge of simple battery, a first-degree misdemeanor; the amended charge of disorderly conduct, a second-degree misdemeanor; and as charged to criminal mischief. Adjudication of guilt was withheld on each count. Appellant was sentenced to time served for disorderly conduct and one year of probation for simple battery followed by a consecutive year of probation for criminal mischief. Appellant’s probation had standard conditions and several special conditions. Special Condition 28 prohibited any contact with the victim of his crimes. In June 2025, Appellant was arrested and charged with burglary with a battery; criminal mischief; strong-arm robbery; grand theft; and battery. The arrest affidavit indicated that the victim of these crimes was the same victim as his prior charges. Appellant was also charged with violating three conditions of his probation by (1) failing to live without violating the law (Condition 5); (2) being untruthful with his probation officer in denying contact with the victim (Condition 9); and (2) having contact with the victim (Special Condition 28). On December 12, 2025, a violation of probation (“VOP”) hearing was held. The State presented the testimony of Appellant and his probation officer, Officer Kerry Davis (“Officer Davis”). Without objection, the State also asked the court to take judicial notice of the court file, specifically the judgment and sentence, the probation order, the affidavit of violation, and the violation report. Officer Davis testified as follows. In January 2025, he took over as Appellant’s probation officer and instructed Appellant on the conditions of his probation. On June 26, 2025, during a monthly report, Officer Davis asked Appellant if he had had contact with the victim or her family, which Appellant denied. At that point, Officer Davis had no knowledge of Appellant having any contact with the victim. Three days later, Appellant was arrested for his new charges. When Officer Davis reviewed the charging affidavit, he determined that Appellant’s denial of contact with the victim was an untruthful statement. Officer 2 Davis prepared a VOP affidavit. Other than the alleged violation based on the untruthful statement, all the violations alleged in the affidavit were based solely on the new arrest affidavit. Appellant testified regarding his plea to the underlying charges. He was sentenced to probation and was instructed as to the conditions of his probation. His conditions included prohibitions on new violations of the law and contact with the victim. On June 26, 2025, Officer Davis asked if he had contact with the victim, which Appellant denied. When asked if his statement to Officer Davis was a truthful statement, Appellant stated that he did not recall. Based on defense counsel’s instruction, Appellant declined to discuss the details of his new offenses under the Fifth Amendment to the U.S. Constitution. The court stated: “[O]nce he takes the Fifth Amendment, the violation regarding the contact has been proven.” After reviewing the new arrest affidavit, the court stated Appellant could not “have it both ways,” but would have to choose between pleading the Fifth Amendment and testifying about the violation. When asked if he was having contact with the victim, Appellant stated: “I do not recall.” Appellant confirmed he was charged and arrested on June 29, 2025. When asked if he had contact with the victim on that day, again, Appellant stated: “I do not recall.” The State objected to the answer as non-responsive, but the court stated it would determine the credibility of the answer. After resting its case, the State stated it was only pursuing the violations as to Condition 9 and Special Condition 28. The State argued these violations were established because Appellant had “direct contact with the victim where he was arrested, confirmed that he was arrested for burglary, battery, and assault, and as well as battery on June 29th, but on June 26th he tells his officer that he is not having any contact with this victim.” The State also asked the court to take judicial notice of the new arrest affidavit, which the court did not address on the record. The State asserted the violations were supported by the arrest affidavit and the witness testimony. Defense counsel argued that the State improperly relied solely on hearsay evidence. It further noted no evidence documented that Appellant and the victim were ever seen together. Even if the court found Appellant’s testimony was not credible, there was 3 nothing to establish contact other than the arrest affidavit, which would be hearsay evidence. Without establishing contact occurred, the State also could not show that Appellant failed to truthfully inform his officer. The court ruled that the State had established both conditions by a preponderance of the evidence. The court took issue with Appellant proceeding with the VOP hearing and defense counsel instructing him to not answer relevant questions. The court found Appellant’s testimony that he did not recall whether he had contact with the victim was not credible. Finally, the court found that competent substantial evidence proved Appellant willfully and substantially violated his probation. In a written judgment and sentence, the court adjudicated Appellant as guilty and sentenced him to 364 days in jail with 167 days credit for time served. Appellant timely filed a notice of appeal. Subsequently, Appellant moved to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2) arguing that the trial court’s orders did not contain written findings by the court identifying the evidence the court relied on and the specific reasons for revoking Appellant’s probation. On January 26, 2026, the trial court entered a written order of revocation of probation and dismissed the motion to correct sentencing error as moot. Analysis A trial court’s decision to revoke probation is reviewed for abuse of discretion. See Mangini v. State, 302 So. 3d 1058, 1059 (Fla. 5th DCA 2020); cf. Sims v. State, 354 So. 3d 1159, 1161 (Fla. 1st DCA 2023) (“Probation is a matter of grace, and not right, and a trial court has broad discretion over probation.” (citation omitted)). But “a trial court’s determination that a probationer willfully and substantially violated a term or condition of her probation must be supported by competent, substantial evidence.” Mangini, 302 So. 3d at 1059 (citation modified); see also Wells v. State, 369 So. 3d 1176, 1180 (Fla. 5th DCA 2023) (“Whether a violation is willful and substantial is a factual issue which may not be overturned on appeal unless there is no competent, substantial evidence to support it.”). “Whether evidence is competent, 4 nonhearsay evidence is a legal question subject to de novo review.” State v. Queior, 191 So. 3d 388, 390 n.3 (Fla. 2016). “At a violation of probation hearing, the State has the burden to prove by a preponderance of the evidence that the defendant violated a condition of probation willfully and substantially.” Mangini, 302 So. 3d at 1059 (citation modified). Yet the “hearing is informal[,] the strict rules of evidence can be deviated from, and the admission of hearsay is not error.” Id. (citation modified). “Even with these relaxed rules, however, findings in a violation of probation hearing cannot be based solely on hearsay that could not be admitted as substantive evidence in other proceedings.” Id. (emphasis added) (citation omitted); see also Queior, 191 So. 3d at 390 n.2 (“Hearsay evidence is admissible to prove a violation of probation, although the hearsay evidence must be supported by non-hearsay evidence.” (citation modified)); Gallardo v. State, 368 So. 3d 1029, 1031 (Fla. 3d DCA 2023) (“Hearsay is admissible and relevant in probation revocation hearings but cannot, standing alone, establish a violation.”). Appellant asserts that the trial court erred in revoking his probation where the alleged violations were not supported by any non-hearsay evidence. In its written order, the trial court found Appellant willfully and substantially violated Conditions 9 and Special Condition 28 of his probation. The court based its finding on the testimony of Officer Davis and Appellant as well as four documents it took judicial notice of: Appellant’s judgment and sentence, probation order, VOP affidavit, and violation report. Condition 9 provides: “You will promptly and truthfully answer all inquiries directed to you by the court or the officer . . . .” (emphasis added). The substance of the alleged violation of this condition is that Appellant was not truthful with Officer Davis in denying that he was in contact with the victim. At the VOP hearing, Appellant asserted that he did not recall if his denial was a truthful statement. But, regardless, Appellant made his denial three days before the arrest where the contact allegedly occurred. Thus, no evidence—hearsay or otherwise—supports the finding that Appellant’s statement to Officer Davis was false. Cf. Holder v. State, 313 So. 3d 813, 814 (Fla. 2d DCA 2021) (“And although [defendant’s] report to [Officer] Beumel was not hearsay, the report itself was not evidence of a violation—the violation occurs 5 only if the report is false, and the only evidence that the report was false was [Officer] Beumel’s hearsay testimony . . . .”). Special Condition 28 provides: “You will not have any contact (direct or indirect) with the victim/victims.” The substance of the alleged violation of this condition is that Appellant contacted the victim during his new criminal escapade. However, Officer Davis testified at the VOP hearing that he had no personal knowledge of any contact between Appellant and the victim. For his part, Appellant denied—or denied being able to recall—any contact with the victim. The remaining evidence includes only the documents that the court took judicial notice of. The judgment, sentence, and probation order would only establish the existence of Appellant’s probation and its conditions. The VOP affidavit and violation report drafted by Officer Davis based solely on the arrest affidavit would constitute hearsay. Likewise, the arrest affidavit—which was not discussed in the written order revoking Appellant’s probation—would be hearsay. See Brown v. State, 260 So. 3d 1101, 1107 (Fla. 3d DCA 2018) (“[T]he only evidence adduced by the State that Brown had committed this violation was the associated arrest affidavit. Standing alone, this hearsay evidence is not sufficient to establish a violation of law so as to justify revocation.”). Thus, the violation was only supported by hearsay evidence and not supported by competent substantial evidence. Conclusion Because the trial court erred in finding Appellant violated Condition 9 without any evidence of falsity and in finding he violated Special Condition 28 where his contact with the victim was supported only by hearsay evidence, we reverse the revocation of his probation. On remand, if Appellant’s tolled probationary period has not expired, the State may file a second VOP affidavit based on the same incident. See Cote v. State, 278 So. 3d 320, 321 (Fla. 5th DCA 2019). REVERSED and REMANDED for further proceedings. LAMBERT and EDWARDS, JJ., concur. 6 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 7