STATE of Florida, Petitioner, v. Shelton SCARLET, Respondent, 800 So. 2d 220

PER CURIAM. We have for review Scarlet v. State, 766 So.2d 1110 (Fla. 3d DCA 2000), which expressly and directly conflicts with Johnston v. State, 768 So.2d 504 (Fla. 4th DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The issue presented in this case is whether, in light of the United States Supreme Court’s decision in Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998), the exclusionary rule is applicable in probation revocation hearings in Florida.

The State acknowledges that the Supreme Court’s decision in Scott did not concern the admissibility of illegally seized evidence at a probation revocation hearing. Nonetheless, the State contends that the Supreme Court’s reasons for rejecting the applicability of the exclusionary rule in parole revocation hearings are equally applicable to probation revocation hearings.

In a unanimous decision in Scarlet the Third District rejected the State’s argument and explained: The Florida Supreme Court has held that in the absence of a controlling federal decision directly on point, evidence obtained through an unlawful search is inadmissible in a probation revocation hearing. See State v. Cross, 487 So.2d 1056 (Fla.1986). Since then the United States Supreme Court has held that such evidence is admissible in parole revocation hearings. See Pennsylvania Parole Bd. v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998).

However, a parole hearing is substantively different, as it is not part of a criminal prosecution. A parole hearing is an administrative proceeding conducted by non-lawyers in a non-judicial setting; “traditional rules of evidence generally do not apply.” Id. at 366, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344. “The exclusionary rule, moreover, is incompatible with the traditionally flexible, administrative procedures of parole revocation.” Id. at 365, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344.

Probation revocation hearings, however, are under the court’s jurisdiction and generally lead to sentencing hearings that require the appointment of counsel. See Floyd v. Parole and Probation Comm’n, 509 So.2d 919 (Fla.1987). In short, parole revocation hearings and probation revocation hearings are very different proceedings. Scott does not overturn Cross. Evidence discovered during an unlawful search is not admissible in a hearing to revoke probation. See Soca v. State, 673 So.2d 24 (Fla.1996); Lawson v. State, 751 So.2d 623 (Fla. 4th DCA 1999).

The State asked this court to certify this question to the Florida Supreme Court. We decline to do so, as the Florida Supreme Court has spoken so clearly on this matter. 766 So.2d at 1110-11. More recently, in Williams v. State, 791 So.2d 37 (Fla. 2d DCA 2001), the Second District followed Scarlet and held that the exclusionary rule is applicable in a probation revocation healing, notwithstanding the Supreme Court’s decision in Scott. We have considered but decline to revisit our prior decisions in State v. Cross, 487 So.2d 1056 (Fla.1986), and Grubbs v. State, 373 So.2d 905 (Fla.1979).

Accordingly, we approve the Third District’s decision in Scarlet and the Second District’s decision in Williams concluding that Scott does not preclude the applicability of the exclusionary rule in probation revocation hearings, and disapprove of the Fourth District’s dicta in Johnston suggesting otherwise. It is so ordered. SHAW, ANSTEAD, PARIENTE, and LEWIS, JJ., concur. WELLS, C.J., dissents with an opinion, in which, HARDING and QUINCE, JJ., concur.