D. D. R. v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
D.D.R.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D2024-2537
February 6, 2026
Appeal from the Circuit Court for Pasco County; James R. Stearns,
Judge.
Blair Allen, Public Defender, and Tosha Cohen, Assistant Public
Defender, Bartow, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Tayna Alexander,
Assistant Attorney General, Tampa, for Appellee.
SLEET, Judge.
D.D.R. appeals the juvenile disposition order revoking probation
and adjudicating her guilty of the delinquent act of criminal mischief, a
second-degree misdemeanor, which she committed on March 3, 2022.
The court sentenced her to commitment in a moderate risk facility. On
appeal, D.D.R. argues that the trial court erred in revoking her probation
based solely on hearsay evidence. Because the State failed to present

2
any corroborating nonhearsay evidence to support the trial court's
finding that D.D.R. broke curfew and violated her probation, we reverse.
I. BACKGROUND
On June 3, 2022, D.D.R. pleaded guilty to criminal mischief. The
trial court withheld adjudication and placed her on probation for two
years. However, she violated her probation, and on October 28, 2022,
the trial court revoked her probation and imposed another year of
probation. On August 18, 2023, after again violating her probation,
D.D.R. was placed on probation until her nineteenth birthday. As part of
her probation, she was to abide by a 6:00 p.m. to 6:00 a.m. curfew,
submit to random searches and drug tests, and cooperate with
placement and individual counseling. However, on May 17, 2024, the
State filed a petition for violation of probation (VOP) alleging that D.D.R.
broke curfew on nineteen specified dates.1 The State also alleged that
D.D.R. tested positive for marijuana on September 29, 2023; that she
failed to attend school with no lates, skips, or discipline referrals on
October 5, 2023; and that she failed to comply with the rules of her
placement on October 7, 2023, March 11, 2024, and March 16, 2024.
On October 24, 2024, the trial court held a revocation hearing and
called five witnesses, beginning with D.D.R. When the State questioned
if D.D.R. violated her curfew, she asked "[w]hen?" The State responded,
"[D]id you violate your curfew at any point while you were on probation?"
She answered, "I'm going to say when I was in foster care, yes, I did."
1 The State alleged that she broke her curfew on August 18, 2023;
August 19, 2023; August 20, 2023; August 21, 2023; September 12,
2023; September 13, 2023; September 14, 2023; September 15, 2023;
September 20, 2023; September 21, 2023; September 23, 2023; October
3, 2023; October 5, 2023; October 8, 2023; January 2, 2024; January 7,
2024; January 9, 2024; January 10, 2024; and April 18, 2024.

3
The State did not then follow up with questioning her about any
particular dates or the time frame during which she was in foster care.
Instead, the State continued with questioning and asked if, on October 5,
2023, she violated the condition that required her to attend school full-
time with no lates, skips, or excused absences or referrals. She stated
that she did not think she did and that she made a good faith effort in
school. Then, when asked if she submitted to a drug screen on
September 29, 2023, that resulted in a positive test for marijuana, she
stated that she did not know the dates of her screenings but that she did
not test positive for the past couple times she had taken the drug tests.
Again, the State did not attempt to follow up on her responses to the
school or drug questions.
The State then called juvenile probation officer Janet Lopes as a
witness. Over a hearsay objection, Lopes testified that she received
emails and text messages from others that stated D.D.R. ran away from
her placement on August 18, 2023, January 2, 2024, January 7, 2024,
January 9, 2024, and January 10, 2024. She did not personally observe
D.D.R. violating curfew on any of the dates in question. Rather, D.D.R.'s
placement told her case manager, who then told Lopes about it.
Next, the State called D.D.R.'s former case manager Emily
Ashkenase. Ashkenase could not recall exact dates but said that D.D.R.
had ongoing behavior issues at times. She stated that D.D.R. would
leave her placement without permission and be gone for hours at a time
before returning, failed to put forth a good effort at school, would cause
disruptions in school or refuse to go or would not participate in
classroom procedures, and violated her curfew multiple times. However,
Ashkenase did not personally observe any of these violations. Rather,
someone at D.D.R.'s placement told her that D.D.R. had broken curfew

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and school staff told her that D.D.R. was not participating. And notably,
the State did not call anyone from D.D.R.'s placement or the school staff
to testify as to their personal observations.
Next, the State called D.D.R.'s dependency case manager Rachel
Colvin. Colvin testified over hearsay objection that it was reported to her
that on April 18, 2024, D.D.R. cut her ankle monitor and ran. She did
not personally observe D.D.R. cut the electronic monitor or leave her
placement. Rather, she only knew about the incident because someone
else told her.
Last, the State called Dequasia Miller, a staff member at Providence
House, the group home where D.D.R. resided. Miller testified that she
saw photos and videos of D.D.R. holding a bottle of alcohol. However,
she did not know when the photos and videos were taken. She also
testified that D.D.R. had broken her curfew but that she did not
personally observe D.D.R. coming back home late. Rather, she learned
about it through a group chat. She stated that she saw D.D.R. leave the
home one day at "like 2:00 or 3:00" and that D.D.R. was not at the home
the following morning when Miller was there. However, she admitted
that she did not know the dates that D.D.R. broke curfew.
D.D.R. argued that because the State relied solely on hearsay
evidence, it failed to show by a preponderance of the evidence that
D.D.R. in fact violated her probation. The trial court noted D.D.R.'s
concerns regarding hearsay evidence but ultimately ruled as follows:
[T]his court is concentrating its ruling as it relates to Ms.
Miller's testimony and her personal observations of [D.D.R.]
failing to return home, not that she was there when she
returned, but she was at the group home when she was not
present and had absconded the night before, around 2:00 or
3:00 in the afternoon it appears, and that she in fact broke a
condition of her probation.

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The court then issued its disposition order, which did not specify the
conditions of probation that D.D.R. violated, revoked her probation, and
placed her in a moderate risk facility. This appeal ensued.2
II. ANALYSIS
On appeal, D.D.R. argues that the trial court erred in finding that
she violated her probation where the finding was based solely on hearsay
evidence. We agree.
"While hearsay that is normally inadmissible in a criminal trial may
be admitted in [violation of probation] proceedings, it may not constitute
the sole basis for finding a violation of probation." D.D. v. State, 271 So.
3d 1176, 1177 (Fla. 3d DCA 2019) (alteration in original) (quoting M.A.L.
v. State, 110 So. 3d 493, 498 (Fla. 4th DCA 2013)); see also Gaddy v.
State, 23 So. 3d 1258, 1259 (Fla. 2d DCA 2009) ("A trial court may
consider hearsay testimony at a violation of probation hearing. But,
hearsay may not be the sole basis supporting a ground for revocation."
(citation omitted)).
Here, in finding that D.D.R. violated her probation, the trial court
relied on Miller's testimony and her personal observations while working
2 During the course of the appeal, D.D.R. filed a motion to correct
sentencing error alleging that her sentence was illegal because the
criminal mischief charge for which she was sentenced was a second-
degree misdemeanor punishable only by up to sixty days in county jail
and her sentence was an indeterminate amount of months until her
nineteenth birthday. She also alleged that the order incorrectly stated
that she was tried and found guilty when in fact the case involved a plea.
The trial court granted the motion, concluding that the sentence was
illegal. However, while the order includes the correct circuit court case
number, it appears to incorrectly state that D.D.R. was on probation for
trespass in this case when it should have been criminal mischief.
Regardless, because both charges are second-degree misdemeanors, the
trial court's reasoning would likely be the same and it appears to be a
scrivener's error.

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at the group home at which D.D.R. resided. However, Miller's
observations do not prove that D.D.R. broke her curfew. The extent of
Miller's testimony was that she observed D.D.R. leave the home at "like
2:00 or 3:00" and that D.D.R. was not at the home the following morning
when Miller was there. D.D.R. had to abide by a 6:00 p.m. to 6:00 a.m.
curfew, so she left the home before her curfew began. But Miller did not
testify as to when she finished her job that day or when she started the
next morning in order to establish whether D.D.R. was at the home
during her curfew hours. If Miller finished her job at 5:00 p.m. and
returned the following day at 9:00 a.m., it is possible that D.D.R. abided
by her curfew by coming home before 6:00 p.m. and leaving the following
morning between 6:00 a.m. and 9:00 a.m. before Miller returned to work
such that Miller did not see D.D.R. the following morning. However,
without any follow-up questions regarding Miller's work hours, we
cannot assume that just because D.D.R. left the home around 2:00 or
3:00 p.m. that she violated her curfew.
Furthermore, "[w]hen a VOP petition alleges that a defendant has
committed a VOP on a specific date, the State must present evidence
showing that the VOP occurred on that specific date as opposed to some
undetermined date." J.T.J. v. State, 353 So. 3d 1175, 1179 (Fla. 4th DCA
2022); see also Cherington v. State, 24 So. 3d 658, 661 (Fla. 2d DCA
2009) (holding that it was error to find a probation violation where the
defendant had admitted to possessing and using cocaine on some
undetermined date rather than on the date specified in the affidavit of
violation). Here, Miller admitted that she did not know the dates that
D.D.R. allegedly broke curfew. Therefore, even if we were to assume that
D.D.R. left the home around 2:00 or 3:00 p.m. and did not return until
some point after her curfew, the State still did not present any evidence

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that D.D.R. violated her curfew on any of the nineteen dates alleged in
the VOP petition.
Apart from Miller's testimony, the only other nonhearsay evidence
that could potentially support the trial court's finding was from D.D.R.
herself. The State questioned if she violated her curfew, and when she
sought clarification as to when, the State responded, "[D]id you violate
your curfew at any point while you were on probation?" She answered,
"I'm going to say when I was in foster care, yes, I did." However, the
State did not have D.D.R. clarify, nor did it otherwise offer any other
evidence, as to when she was in foster care in order to establish that she
was in foster care during her current probationary period as opposed to a
prior period. Furthermore, the State failed to follow up and ask D.D.R.
about the specific dates alleged in the VOP petition. Therefore, D.D.R.'s
admission is immaterial as it does not establish that she violated her
curfew on any of the nineteen dates alleged in the VOP petition.
Because neither Miller nor D.D.R. testified as to the specific date on
which she allegedly broke her curfew and the only other evidence of
specific dates came from hearsay testimony, the State failed to present
any corroborating nonhearsay evidence to support the trial court's
finding that D.D.R. broke curfew and violated her probation. See
Cherington, 24 So. 3d at 661. Accordingly, we reverse.
Reversed.
ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur.
Opinion subject to revision prior to official publication.