Smith v. State ( 1995 )

664 So.2d 72 (1995)

John SMITH, Appellant,
v.
The STATE of Florida, Appellee.

No. 94-1657.

District Court of Appeal of Florida, Third District.

December 13, 1995.

Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Sylvie Perez Posner, Assistant Attorney General (Hollywood), for appellee.

Before HUBBART, LEVY and GREEN, JJ.

PER CURIAM.

The State acknowledges that the only evidence to support the allegation that the defendant violated his probation by not successfully completing a drug rehabilitation program, as a condition of his probation, consists solely of hearsay evidence. The State correctly concedes, therefore, that this allegation is insufficient to support a revocation of the defendant's probation.

Since the record is equally clear, however, that there was an additional violation alleged that would support the revocation of the defendant's probation, the order revoking the defendant's probation is affirmed as to the charge that he failed to make monthly reports. The portion of the Order of Revocation that relates to the defendant's failure to successfully complete a drug rehabilitation program is reversed. Since the record is not clear as to whether the trial court would have revoked the defendant's probation and sentenced the defendant to five years in prison based solely on the one valid ground supporting revocation, the order revoking probation and the five year sentence imposed thereafter are reversed and the cause is remanded to the trial court with directions to determine whether the defendant's probation should be revoked and, if so, what sentence should be imposed.

Affirmed in part, reversed in part, and remanded for further proceedings.