5D07-1123 Desmond Harris v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-1123

Case Date: 11/26/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

DESMOND HARRIS , Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed November 30, 2007 Appeal from the Circuit Court for Lake County, T. Michael Johnson, Judge. James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D07-1123

THOMPSON, J. Desmond Harris appeals his revocation of probation and sentence to the Department of Corrections. The evidence presented to the court was a lab test that indicated Harris tested positive for THC.1 When the State proffered the lab test to the

1

Delta -9-Tetrahydrocannabinol, THC, is the psychoactive ingredient in

marijuana.

trial court, the defense attorney objected, citing Crawford v. Washington, 541 U.S. 36 (2004). The attorney argued that the lab report was hearsay and testimonial in nature and its admission violated Harris' Sixth Amendment right of confrontation. We affirm. In Wilcher v. State , 946 So. 2d 114 (Fla. 5th DCA 2007), and Russell v. State, 920 So. 2d 683 (Fla. 5th DCA), rev. granted, 926 So. 2d 1270 (Fla. 2006), we held that Crawford does not apply to probation revocation proceedings. Harris concedes that we have previously addressed the issue and requests that we certify the question to the Florida Supreme Court. We grant the request and certify the following question to the Florida Supreme Court as one of great public importance: DOES THE "TESTIMONIAL HEARSAY" RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004), APPLY IN COMMUNITY CONTROL AND/OR PROBATION REVOCATION PROCEEDINGS? AFFIRMED; QUESTION CERTIFIED.

TORPY and LAWSON, JJ., concur.

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