Robert Sheldon PETERS, Petitioner, v. STATE of Florida, Respondent, 984 So. 2d 1227

QUINCE, J. We have for review a decision of the First District Court of Appeal in Peters v. State, 919 So.2d 624, 628 (Fla. 1st DCA 2006), on the following question certified to be of great public importance: DOES THE “TESTIMONIAL HEARSAY” RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36[, 124 S.Ct. 1354, 158 L.Ed.2d 177]

(2004) APPLY IN COMMUNITY CONTROL AND/OR PROBATION REVOCATION PROCEEDINGS? We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we hold that the rule set forth in Crawford, which provides that testimonial hearsay is inadmissible in a criminal prosecution unless the declarant is unavailable and the accused has had an opportunity to cross-examine the witness, does not apply to probation or community control revocation proceedings in Florida.

FACTUAL AND PROCEDURAL HISTORY Robert Sheldon Peters, already on probation in August 2000, entered a plea of nolo contendere to new charges of criminal mischief, assault, and escape. The trial court adjudicated him guilty of escape, withheld imposition of sentence, and placed him on probation, merging the previous probations into a new three-year probationary period. In January 2003, Peters’ probation officer filed an affidavit of violation of probation, alleging use of marijuana and failure to follow instructions by refusing to submit a urine sample.

Peters pled nolo contendere, and the court modified his probation in May 2003 by ordering him to serve twelve months of community control. By June 2003, Peters’ probation officer filed a new notice of violation, alleging that Peters tested positive for amphetamines on two separate dates. In July 2003, the court revoked the prior community control, sentenced Peters to twenty-four months in the Department of Corrections (suspended), and again ordered him to serve twelve months of community control under the original terms and conditions.

Pursuant to the terms of his supervision, Peters was required to submit urine samples to be tested for the presence of illegal narcotics. His April 2004 sample was sent to PharmChem, an independent laboratory used by the Department of Corrections. The lab report indicated that the sample was positive for amphetamines and meth-amphetamines, and the result was confirmed by PharmChem in a second testing. The State submitted the urinalysis report at a new revocation hearing in June 2004, along with a “Certification and/or Declaration of the Report as a Business Record Pursuant to 90.803(6), Fla.

Evid.Code,” which was signed by the corporate records custodian and notarized. No one from the laboratory testified at the hearing. Defense counsel objected to the report, arguing that the proceeding was a trial and that admission of the report violated Peters’ right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Defense counsel also objected on the ground that under Monroe v. State, 679 So.2d 50 (Fla. 1st DCA 1996), and Williams v.

State, 553 So.2d 365 (Fla. 5th DCA 1989), the report constituted hearsay, which cannot form the sole basis for finding a violation of community supervision. In turn, the State argued that the report was admissible as a business record. The circuit court found Peters guilty of the violation, revoked community control, and sentenced him to twenty-four months of incarceration. The First District affirmed and held that the rule in Crawford does not apply to community supervision revocation proceedings. Peters v. State, 919 So.2d 624 (Fla. 1st DCA 2006).

DISCUSSION Peters primarily contends that he is entitled to confront and cross-examine the witnesses against him because the Pharm-Chem lab report is considered testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He contends that because Florida probation revocation proceedings constitute “criminal prosecutions” within the meaning of the Sixth Amendment, they are sufficiently analogous to trials that his Confrontation Clause rights are prescribed by Crawford.

Peters also argues that he was denied due process of law because he was prevented from confronting and cross-examining anyone from PharmChem. Sixth Amendment Right of Confrontation and Revocation Proceedings In Crawford, the United States Supreme Court held an out-of-court testimonial statement of an unavailable declarant is not admissible at a criminal trial unless the defendant had a prior opportunity to cross-examine the declarant. If these requirements are not satisfied, the Confrontation Clause requires exclusion of the evidence.

The Crawford decision applies specifically to the use of testimonial statements during a criminal prosecution. The Crawford Court did not establish a precise definition of testimonial but said at a minimum testimonial statements would include prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and police interrogations. This pronouncement was clarified somewhat in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), a case centering upon an exchange between a victim/witness and a 911 operator.

In Davis, the Court said: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively demonstrate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Id. at 822, 126 S.Ct. 2266.

In the instant case, the district court found the lab report testimonial under the Crawford formulation. However, this Court need not address whether the specific laboratory report relied upon in Peters’ revocation hearing was testimonial, because the issue presented by the certified question is really whether a revocation proceeding is a criminal prosecution as that term is used in Crawford. We find that revocation of probation or community control proceedings are not criminal prosecutions and that Crawford does not apply to revocation proceedings. In Morrissey v.

Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court began its opinion with the proposition that “the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” 408 U.S. at 480, 92 S.Ct. 2593 (citing Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)). The Court emphasized that its decision was not an attempt “to equate [a revocation hearing] to a criminal prosecution in any sense.” Id. at 489, 92 S.Ct. 2593.

A year later, the Supreme Court extended that holding to probation revocation proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (“Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty.”).

The overwhelming majority of state and federal courts that have considered Crawford have decisively concluded that Crawford concerns only Sixth Amendment confrontation rights in criminal prosecutions and that parole or probation revocation proceedings are not criminal prosecutions within the meaning of the Sixth Amendment. Peters, however, contends that probation revocation proceedings in Florida are judicial, adversarial inquiries that are more akin to a criminal prosecution within the meaning of the Sixth Amendment than the informal revocation proceedings considered by the U.S.

Supreme Court in Morrissey and Scarpelli. These cases both distinguished between informal revocation proceedings, in which the state is represented by the parole or probation officer, and the formal adversarial nature of criminal prosecutions, where the state is represented by a prosecutor. Peters notes that in Florida revocation proceedings, a prosecutor rather than a probation officer represents the state, and a judge rather than an informal panel of hearing officers determines whether to revoke probation.

However, Scarpelli makes a distinction between the two types of proceedings in order to resolve the narrow issue of whether a probationer had an absolute right to counsel at a probation hearing. 411 U.S. at 783, 93 S.Ct. 1756. Notably, Peters does not allege a violation of his right to counsel, but a violation of his right to confront and cross-examine an adverse witness. Peters also argues that a probation revocation hearing is a criminal prosecution because prosecution terminates only with sentencing and a revocation hearing is a deferred sentencing. See Green v.

State, 463 So.2d 1139, 1140 (Fla.1985) (referring to the revocation process as deferred sentencing). He contends that the term “prosecution” encompasses proceedings following the determination of guilt and in support notes that Florida courts have held that defendants retain certain other constitutional rights at the sentencing stage. See, e.g., Tur v. State, 797 So.2d 4, 6 (Fla. 3d DCA 2001) (holding that the court could not impose a deferred sentence at a revocation hearing without having appointed counsel for the defendant); Santeufemio v.

State, 745 So.2d 1002 (Fla. 2d DCA 1999) (holding that a defendant has a right to be present at a revocation hearing). We reject both arguments. In Morrissey, the Supreme Court stated that revocation proceedings are not criminal prosecutions but noted, “Parole arises after the end of the criminal prosecution, including imposition of sentence.” 408 U.S. at 480, 92 S.Ct. 2593.

The Court in Scarpelli observed, “Despite the undoubted minor differences between probation and parole, the commentators have agreed that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole.” 411 U.S. at 782 n. 3, 93 S.Ct. 1756. In contrast, sentence is often not imposed on a Florida probationer.

The Florida Rules of Criminal Procedure provide, “Pronouncement and imposition of sentence of imprisonment shall not be made on a defendant who is to be placed on probation, regardless of whether the defendant has been adjudicated guilty.” Fla. R.Crim. P. 3.790(a); see also § 948.01(2) Fla. Stat. (2006). Thus, Peters contends that criminal prosecution continued in his case throughout the probationary period and did not conclude until the court imposed sentence at the conclusion of the revocation hearing.

Though probation revocation may constitute a part of the sentencing process, case law supports the proposition that a “criminal prosecution” concludes with the determination of guilt of the crime charged, not with a determination that a later violation of probation has occurred. Cf. Bernhardt v.

State, 288 So.2d 490, 498 (Fla.1974) (“Probation revocation is an entirely different stage of the criminal-correctional process.” (quoting In re Whitney, 421 F.2d 337, 338 (1st Cir.1970))); see Scarpelli 411 U.S. at 782, 93 S.Ct. 1756 (“Probation revocation, like parole revocation, is not a stage of a criminal prosecution.... ”). Critical to the distinction between a criminal prosecution at trial, during which a defendant enjoys the protections of the Sixth Amendment, and a criminal proceeding such as a revocation hearing is the fact that the accused at trial awaits a determination of guilt or innocence.

In Scarpelli the Supreme Court asserted that it dealt “not with the right of an accused to counsel in a criminal prosecution, but with the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime.” Scarpelli 411 U.S. at 789, 93 S.Ct. 1756 (emphasis added). In Florida, a court may only place on probation a defendant who “has been found guilty by the verdict of a jury, has entered a plea of guilty or a plea of nolo contendere, or has been found guilty by the court trying the case without a jury.” § 948.01, Fla. Stat. (2006).

Although a court may not impose sentence, i.e., incarceration, at the time it places a defendant on probation and may further choose to withhold adjudication of guilt, the “conviction” of the defendant is concluded prior to the commencement of probation. See Fla. R.Crim. P. 3.790(a).

We stated in an early revocation case that “[t]he purpose of the granting of probation ... without an actual adjudication of guilt, is rehabilitation of one who has committed the crime charged without formally and judicially branding the individual as a convicted criminal and without the loss of civil rights and other damning consequences.” Bernhardt v. State, 288 So.2d 490, 495 (Fla.1974).

The imposition of sentence is not withheld in order to ensure the retention of constitutional rights by a party who is presumed innocent; rather, sentence is withheld solely to aid in the rehabilitation of a party whose guilt has been established. In Bernhardt, we acknowledged that while a defendant is not incarcerated when placed on probation, the defendant is nonetheless serving a type of suspended sentence. This Court, quoting from Brill v.

State, 159 Fla. 682, 32 So.2d 607, 608-09 (1947), said: The major concern of the court at the [revocation] hearing was whether or not appellant had been on good behavior during his suspended sentence. The liberty he was enjoying was by judicial grace, he had already plead [sic] guilty to the offense of selling moonshine liquor. The hearing is in no sense a retrial of the main offense. Having plead [sic] guilty to that, he is now subject to be sentenced as he might have been at the time the suspended sentence was promulgated if he has not observed its conditions. The hearing was to determine this and no more.

Such hearings are informal and do not take the course of a regular trial, neither does the evidence have the same objective as that taken at a regular trial. Its purpose is to satisfy the conscience of the court as to whether the conditions of the suspended sentence have been violated. A secondary purpose is to give the person accused of violating the suspended sentence a chance to explain away the accusation against him, but even this does not contemplate a strict or formal trial. 288 So.2d at 495.

Since Bernhardt, we have continued to acknowledge that while probation is not necessarily a sentence, the criminal prosecution has ended with either a sentence of incarceration or a suspended sentence of probation. See, e.g., Perez v. State, 599 So.2d 1385 (Fla. 3d DCA 1992) (acknowledging probation as a sentence in lieu of immediate imprisonment); McGuirk v. State, 382 So.2d 1235 (Fla. 2d DCA 1980) (acknowledging that a court may suspend all or some of a defendant’s sentence in order to place the defendant on probation).

Case law uniformly draws a distinction between the full array of rights due to a defendant before conviction and the limited rights available during sentencing proceedings. “It is well-established ... that a defendant’s rights at sentencing differ considerably from his pre-conviction rights.” United States v. Jackson, 453 F.3d 302, 305 (5th Cir.) (affirming denial of defendant’s right to present a witness during sentencing to rebut presentence investigation report), cert. denied, — U.S. -, 127 S.Ct. 462, 166 L.Ed.2d 329 (2006); see also United States v.

Young, 981 F.2d 180 (5th Cir.1992) (“Concerning the right to confrontation, it is more than well-established that ‘a defendant’s confrontation rights at sentencing are severely restricted.’ ”); United States v. Satterfield, 743 F.2d 827 (11th Cir.1984) (holding that a noncapital defendant does not have a constitutional right to confront and cross-examine adverse witnesses at sentencing to rebut presentence investigation report). The rights available to the defendant awaiting sentencing are limited because the interest at stake at the sentencing stage is limited. See United States v.

Giltner, 889 F.2d 1004, 1008 (11th Cir.1989) (“It is widely recognized that the sole interest being protected at sentencing is the right not to be sentenced on the basis of inaccurate or unreliable information.”); United States v. Espinoza, 481 F.2d 553, 555 (5th Cir.1973) (“What is involved ... is the right of a defendant to at least minimal safeguards to insure that the sentencing court does not rely on erroneous factual information when assessing sentence.”). Similarly, the constitutional rights available to a probationer are also limited. Cfi United States v.

Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (holding that a warrantless search of the probationer’s home without probable cause was reasonable under the Fourth Amendment under a lesser standard of reasonable suspicion where the terms of probation included consent to a warrantless search); Minnesota v. Murphy, 465 U.S. 420, 435 n. 7, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (reiterating that there is no right to a jury trial before probation is revoked); Prellwitz v.

Berg, 578 F.2d 190, 192 (7th Cir.1978) (affirming revocation and recognizing that probation revocation hearings are not subject to the full constitutional standards of a criminal trial); Scott v. State, 937 So.2d 746 (Fla. 4th DCA 2006) (holding that the Fifth Amendment prohibition against double jeopardy does not pertain to probation revocation hearings). But see State v. Scarlet, 800 So.2d 220 (Fla.2001) (holding that in the absence of a controlling federal decision, the exclusionary rule applies to illegally seized evidence in Florida probation revocation hearings).

Because a probationer has already been found guilty of the crime charged before being placed on probation or under community supervision, the revocation proceeding implicates only a limited, conditional liberty interest rather than the absolute liberty interest enjoyed by a criminal defendant prior to trial. Therefore, a revocation proceeding cannot be equated to a criminal prosecution for Sixth Amendment Confrontation Clause purposes. Because Crawford addresses the use of testimonial hearsay only in the context of criminal prosecutions, the decision does not apply to Florida revocation proceedings.

Due Process Right in Revocation Proceedings Peters also argues that even if this Court finds that he does not have a right to confront and cross-examine adverse testimony or evidence under the Sixth Amendment, he still has a due process right to confront and cross-examine evidence against him pursuant to the Due Process Clause of the Fourteenth Amendment. In Morrissey, the U.S. Supreme Court also addressed and rejected the argument that parolees had no due process rights. The Court specifically found that parolees are entitled to: (

a) written notice of the claimed violations of parole; (

b) disclosure to the parolee of evidence against him; (

c) opportunity to be heard in person and to present witnesses and documentary evidence; (

d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (

e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (

f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. 408 U.S. at 489, 92 S.Ct. 2593; see also Black v. Romano, 471 U.S. 606, 610, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) (“The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation.”); Moody v.

Daggett, 429 U.S. 78, 85-86, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (“In Morrissey, we held that the conditional freedom of a parolee generated by statute is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment which may not be terminated absent appropriate due process safeguards.”). After outlining these minimum requirements of due process, the Supreme Court also said, “We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense.

It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” 408 U.S. at 489, 92 S.Ct. 2593. The Supreme Court, however, described a limited right where it held that due process requires that a parolee have the right to confront and cross-examine adverse witnesses “unless the hearing officer specifically finds good cause for not allowing the confrontation.” Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. Other courts have more directly stated the limitation. See United States v.

Satterfield, 743 F.2d 827 (11th Cir.1984) (holding that a noncap-ital defendant does not have a constitutional right to confront and cross-examine adverse witnesses at sentencing to rebut information in a presentence report); Ryan v. Montana, 580 F.2d 988 (9th Cir.1978) (holding that the right to confront and cross-examine adverse witnesses is not absolute in a combined probation revocation and deferred sentencing proceeding); Young v. United States, 863 A.2d 804, 808 (D.C.2004) (holding that the probationer holds a “qualified” due process right to confrontation); see also Baber v.

State, 775 So.2d 258, 260 (Fla.2000) (“Federal and Florida courts have recognized, however, that the right to confront one’s accusers is not absolute.”).

The Supreme Court emphasized that the revocation process must be “flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. “The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.” Id. at 488, 92 S.Ct. 2593; see also United States v.

Giltner, 889 F.2d 1004, 1007 (11th Cir.1989) (“While hearsay evidence may be considered at sentencing, due process requires both that the defendant be given an opportunity to refute it and that it bear minimal indicia of reliability.”). “What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” Morrissey, 408 U.S. at 484, 92 S.Ct. 2593.

Acknowledging these due process requirements, this Court stated, “[T]he evidence upon which to predicate a revocation introduced at the hearing must be sufficient to satisfy the conscience of the court that a condition of probation has been violated.” Bernhardt, 288 So.2d at 495. We do not interpret the Crawford decision as changing these standards in regard to revocation hearings. The court in Crawford specifically limited its holdings to testimonial hearsay in the context of a criminal prosecution under the Sixth Amendment Confrontation Clause.

We will not extend the holding in Crawford beyond the bounds outlined by the United States Supreme Court. Conclusion For the foregoing reasons, we answer the certified question in the negative and hold that Crawford does not apply to revocation proceedings in the State of Florida. We approve the decision of the First District Court of Appeal. It is so ordered. LEWIS, C.J., and WELLS, PARIENTE, CANTERO, and BELL, JJ., concur. ANSTEAD, J., dissents with an opinion. .

Though Peters additionally argues that the lab report does not fall within the business records exception to the hearsay rule, no objection was made on this basis in the trial court and that argument is not discussed in this opinion. Further, in State v. Johnson, 982 So.2d 672 (Fla. 2008), we held that lab reports such as the one involved here are in fact testimonial under the Crawford analysis. . United States v. Wooden, No. 05-13981, 179 Fed.Appx. 601 (11th Cir.

May 3, 2006) (noting that neither the Circuit nor the Supreme Court had extended Crawford to supervised release proceedings) (unpublished); See United States v. Williams, 443 F.3d 35 (2d Cir.2006) (holding that the Sixth Amendment does not apply to supervised release revocation hearings); United States v. Rondeau, 430 F.3d 44 (1st Cir.2005) (holding that the Confrontation Clause does not apply to postcon-viction proceedings and that Crawford does not apply to supervised release revocation hearings); United States v.

Kirby, 418 F.3d 621 (6th Cir.2005) (noting that nothing in Crawford purported to alter the standards set forth in Morrissey or Scarpelli); United States v. Aspinall, 389 F.3d 332 (2d Cir.2004) (same); United States v. Pratt, 52 F.3d 671 (7th Cir.1995) (holding, in an ineffective assistance of counsel action, that a revocation hearing is not part of a criminal prosecution); United States v. Barraza, 318 F.Supp.2d 1031 (S.D.Cal.2004) (holding that Crawford is not controlling authority regarding the right to confrontation in a probation revocation proceeding); People v.

Johnson, 121 Cal.App.4th 1409, 18 Cal.Rptr.3d 230 (2004) (holding that probation revocation proceedings are not criminal prosecutions); Jenkins v. State, 862 A.2d 386, 2004 WL 2743556 (Del.2004) (declining to apply Crawford because a violation of probation hearing is neither a formal trial nor a criminal prosecution); Young v. United States, 863 A.2d 804 (D.C.2004) (likening probation revocation to an administrative hearing rather than a criminal prosecution and declining to apply Crawford); Commonwealth v.

Wilcox, 446 Mass. 61, 841 N.E.2d 1240 (2006) (holding that a probation revocation proceeding is not a criminal prosecution and that Crawford does not apply); Diaz v. State, 172 S.W.3d 668 (Tex.App.2005) (holding that a community supervision revocation is not a stage of a criminal prosecution and agreeing that Crawford does not apply); State v. Abd-Rahmaan, 154 Wash.2d 280, 111 P.3d 1157 (2005) (accord). Florida’s district courts of appeal hold similarly. Sproule v.

State, 927 So.2d 46 (Fla. 4th DCA) (rejecting claim that admission of driving record at trial was hearsay and a violation of Sixth Amendment right to confront and cross-examine under Crawford), review denied, 935 So.2d 2 (Fla.2006); see also Russell v. State, 920 So.2d 683 (Fla. 5th DCA) (rejecting appellant's claim that his probation was improperly revoked because the revocation was based solely on otherwise inadmissible hearsay evidence, and holding that Crawford does not apply to revocation of supervised release proceedings), approved, 982 So.2d 642 (Fla. 2008). .

We note, without comment, that in Peters’ prior July 2003 revocation hearing, the trial court revoked, community control, imposed a suspended sentence of twenty-four months, and again ordered that Peters submit to community control for a period of twelve months. . The federal courts have applied a balancing test to determine whether the right of confrontation is triggered under due process. See United States v.

Pierre, 47 F.3d 241 (7th Cir.1995) (affirming revocation, assuming that laboratories performed double-blind validity tests and noting that the record failed to show evidence that PharmChem urinalysis reports were unreliable); United States v. Bell, 785 F.2d 640 (8th Cir.1986) (remanding on different basis, but finding that the independent urinalysis lab reports were substantially reliable as regular reports of a company which expected its clients to act on the information, and noting that probationer made only general claims that the results might have been defective).