Tremaine Johnson v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-933
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TREMAINE JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Alachua County.
Phillip A. Pena, Judge.
September 5, 2018
PER CURIAM.
Tremaine Johnson appeals the trial court’s order revoking his
probation and sentencing him to ten years in prison. We affirm.
In 2007, Johnson pleaded no contest to two counts of armed
robbery and one count of aggravated assault with a firearm. He
was sentenced to three years’ prison for the assault charge and five
years’ probation for the robbery charges. Under the terms of his
probation, Johnson was required to report each month to his
probation officer. He was prohibited from possessing firearms and
from violating the law. And he was prohibited from changing his
residence or place of employment or leaving the county without his
probation officer’s permission. Also included in Johnson’s order of
supervision was an “other special conditions” section, in which
there was handwritten language stating: “after 2½ yrs [sic] and no
violations probation may term[inate] early.”
Johnson was released from prison and started his probation
in 2009. Shortly thereafter he was authorized to transfer his
probation to Georgia where his mother lived. He indicated on his
probation paperwork that a friend’s Georgia address would be his
permanent residence. In January 2013, Johnson’s Georgia
probation officer tried to contact him but was unable to reach him
at the phone numbers Johnson provided, at the address listed as
his residence, or at his listed place of employment. The officer
reported to Johnson’s Florida probation officer that she could not
find him. The Florida officer filed a Violation of Probation (VOP)
affidavit alleging Johnson absconded, and an arrest warrant
issued the next day.
In June 2013, Johnson was arrested in Michigan on federal
firearm charges for which he served 39 months in prison. Later, on
the day after the five-year probation period would have ended, the
Florida probation officer filed an amended VOP affidavit alleging
that (in addition to absconding) Johnson violated his probation by
possessing a firearm, which was itself a violation and also
constituted a separate violation of the requirement that Johnson
live without committing additional crimes.
Johnson contends that we must reverse as to the absconding
violation because of insufficient evidence. He argues that the State
relied solely on hearsay evidence, which as a matter of law is
insufficient. See Channell v. State, 200 So. 2d 247, 248-49 (Fla. 1st
DCA 2016). But this record includes sufficient non-hearsay
evidence to support the court’s findings. First, the Georgia and
Florida officers both provided non-hearsay testimony regarding
their unsuccessful attempts to contact Johnson by phone and in
person. State v. Queior, 191 So. 3d 388, 390-91 (Fla. 2016) (“A
probation officer testifying at hearing, subject to cross-
examination, to what he or she personally did and observed is
classic non-hearsay testimony.” (marks and citation omitted)).
Second, the person Johnson reported he would be living with
testified that Johnson would spend nights with his mother and his
girlfriend. At one point, the witness said that Johnson “—you
know, had a girlfriend, so he kind of, didn’t come home.” The same
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witness also testified that Johnson changed jobs several times
while on probation and that he moved to Michigan in 2013 to be
with his girlfriend. This testimony corroborates any hearsay
testimony the probation officers offered about Johnson’s
absconding.
Moreover, Johnson himself testified that he was aware of the
terms and conditions of his probation and knew that he was
required to secure his probation officer’s permission before
changing his employment or residence. He also testified that he
left his job at Walmart in 2011 and started a new job at Atlanta
Beverage Company without informing anyone. These admissions
are sufficient to support the court’s finding that Johnson
absconded. Cf. T.J.S. v. Miles, 96 So. 3d 1104, 1106 (Fla. 2d DCA
2012) (holding that probationer absconded due to her “failure to
advise . . . her probation officer of her whereabouts or well-being
or to otherwise contact them”).
Last, Johnson contended that because of the handwritten note
on his paperwork, he thought his probation had ended early. Thus,
he argued, any absconding was not willful. See State v. Meeks, 789
So. 2d 982, 987 (Fla. 2001) (“a violation must always be willful and
substantial to produce a revocation” (emphasis omitted)). But the
trial court was not obligated to accept his testimony as truthful. In
short, there was sufficient evidence to support the trial court’s
conclusion that Johnson absconded. We therefore will not address
Johnson’s argument that because he did not abscond, the trial
court lost jurisdiction because the supervision time was not tolled.
AFFIRMED.
JAY, WINSOR, and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Lori A. Willner, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.
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