5D02-1196 Pettus v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-1196

Case Date: 01/27/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT RALPH PETTUS, Appellant, v. STATE OF FLORIDA, Appellee. / Opinion Filed January 31, 2003 Appeal from the Circuit Court for Orange County, Bob Wattles, Judge. James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant. Charlie Crist, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee. PLEUS, J. Pettus appeals his adjudication for violation of probation. The trial court found him guilty of violating two conditions of his probation: using marijuana and failing to follow his probation officer's instructions. On the first condition, he argues that there was no competent proof that he used marijuana. On the second condition, he argues that the condition was not court-ordered, was based on hearsay and was not willful and substantial. We agree and reverse. The first issue turns on whether Pettus admitted using marijuana. We find that he did Case No. 5D02-1196 JANUARY TERM 2003

not. In his direct examination, the probation officer testified at least three times that Pettus admitted using marijuana. The probation officer decided to forego giving Pettus a drug test to confirm his marijuana use. Instead, he had Pettus sign an "admission" and referred Pettus to a drug counseling and evaluation program. When Pettus failed to appear for his

appointment, the officer filed an affidavit of violation. However, on cross-examination the probation officer equivocated. Pettus' attorney first established that the probation officer could not remember what Pettus said to him. Then, the following exchange occurred: Q Do you recall him telling you he may have been out to a function or place where cannabis was smoked and he was worried that he would test positive because of cannabis smoke? Does that sound familiar? Can I state my opinion? It's not necessary? He may have stated that, but in my experience somebody comes in and admits they're around people

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