Articles Posted in VOP / Violation of Probation

“Know the rules well, so you can break them effectively.” — Dalai Lama XIVlab2

Every country on Earth has criminal rules, and they all sound remarkably similar.    We Americans enjoy a “presumption of innocence”, and Article 37 of the Constitution of the Islamic Republic of Iran states that “Innocence is to be presumed”.   Two countries, both with a “presumption of innocence”.  Do you think they mean the same thing?   It is our court’s interpretation of these words that given them teeth and meaning. Trust me, you would rather be presumed innocent in Florida, versus Tehran.

From time to time, American courts chip away at the meaning of criminal laws, and as such, we are creeping ever so slowly towards interpretations more in line with Tehran than Miami.  To demonstrate this slow erosion, we’re going to review the recent Florida Supreme Court case of Florida v. Queior, 2016 Fla. LEXIS 841 (Fla. 2016).

This article may start to sound a bit like an episode of Inside Baseball, but the erosion of our rights can be subtle, so bare with me here.  The bad decision in Queior arose out of a violation of probation case involving a probationer who tested positive for drugs.  Let’s begin with a bit of background on how a violation of probation works.  It all begins with the old saying, “Come to Florida on vacation, leave on probation.”  Next, you actually violate that probation.  Finally, the criminal rules afford you a hearing where, if you’re found guilty of violating, you’re probably facing jail or prison time.  But, there is hope.  After all, we still have the rules of evidence, right?   Continue Reading

cocaine linesHow many products these days claim to be “scientifically proven”?  Proven to kill 99% of all germs.  Eliminating 95% of all odors.  Clinically proven to smooth wrinkles, or shrink your belly.  How much “faith” can we put into these scientific claims?   It depends on who is making the claim, right?  Is it the doctor that conducted the study?  Or, is it a janitor who got a good night sleep at a Holiday Inn Express?

Typically, our court system has done a decent job of keeping out scientific evidence that cannot be substantiated.  The main vehicle for testing scientific assertions is cross examination.  When a prosecutor presents a witness who makes scientific claims, we defense attorneys are able to cross examine this witness to test accuracy.  At times, legislatures have tried to help prosecutors by passing laws that permit scientific assertions without the need to back up the claim with live scientific testimony.  The United State Supreme Court has struck down these government attempts to insulate scientific conclusions from cross examination from folks like me.  For example, Massachusetts passed a law permitting prosecutors to introduce lab reports as proof of a drug’s identity.  (See Melendez-Diaz v. Massachusetts, 557 U.S. 1256 (2009), my article on this issue can be found here).  The Supreme Court struck down this law, finding such a maneuver unconstitutional.  In essence, the prosecutor is not permitted to introduce a piece of paper from a laboratory as proof of a substance’s identity (cocaine, or heroin, for example).  They must present a scientist who knows something about the science underlying the lab report.  Then, the lab report is admissible.

When prosecutors were unable to identify “cocaine” by simply presenting a piece of paper from a laboratory, the prosecutors decided they would call laboratory employees to the stand to testify as to what the lab does, etc etc.  They would bring in anyone to testify.  The receptionist from the lab, for example—rather than an actual scientist—so as to prevent defense attorneys from cross examining someone who understands the science.  Without meaningful cross examination, why not believe an official looking document like a lab report?  In other words, some prosecutors don’t want their “science” to be challenged, so they present witnesses who cannot not answer scientific questions on cross examination.  Once again, the Supreme Court stepped in and, in the case of Bullcoming v. New Mexico, the Court held that such a tactic was unconstitutional (131 S. Ct. 2705 (2011), you can find my article on this issue here).  In order to admit a scientific document into evidence, the prosecutor must present the scientist responsible for creating the document (or, at least somebody who knows something about it).  With this in mind, let’s take a look at what prosecutors in Florida are trying to get away with in dirty urine violation of probation cases. Continue Reading

Violations of probation (VOP’s) come in all shapes and sizes.  Some are more difficult to prove than others.  A dirty urine violation, for example, is deceptively complex.  Even a curfew violation may not be as simple as you might think.  But today we’re going to review what happens when a citizen is on probation and violates by getting arrested on a new charge.  Nothing gets a prosecutor more giddy than a VOP case based upon a new arrest.  But, don’t be distracted by a prosecutor’s confidence, as their zeal often blinds them to the weaknesses in their case.  I’m all for a little confidence, it makes my job masks

The recent case of Vidale v. State sheds some light on just how difficult it can be to prove up a new law violation at a VOP hearing.  166 So. 3d 935 (Fla. 4th DCA 2015).  Vidale was serving a two year probationary term for dealing in stolen property and throwing a deadly missile.  Like all other probationers, he had two prime directives while on probation.  First, don’t get arrested.  Second, don’t hang out with criminals.  Easy enough, right?  These conditions pretty much parrot every mom’s advice on Earth.  Unfortunately, Vidale found himself in jail on a violation of probation due to a new arrest for burglary of a dwelling and possession of cannabis.  Here’s the testimony at the violation of probation hearing. Continue Reading

Cross examination is the greatest legal engine ever invented for the discovery of truth.”  John Wigmore (Wigmore wrote the book on Evidence)IMG_1161

The age-old tool for ferreting out truth in the trial process is the right to cross-examination.  For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.” United States v. DiLapi, 651 F.2d 140, 149-151 (2d Cir. 1981)

Cross-examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974).

How do we really know something is true?  This question dates back to Plato, and even though we haven’t made much progress philosophically, our legal system provides various rules designed to ferret out the truth.  At its core, evidence against a citizen is tested by cross-examination.  If you limit cross-examination, you have effectively slowed down “the greatest legal engine ever invented for the discovery of truth”.  The recent decision in Marquis Bell v. State has dumbed down the violation of probation process, devolving judges into rubber stamps for law enforcement. 2015 Fla. App. LEXIS 14993 (Fla. 5th DCA October 9, 2015).   To understand what went wrong in Bell, let’s get back to the basics.

How can you test if a person is being truthful?  Cross-examination.   How can you test a document for truthfulness and accuracy?  Cross-examination.  If a lab report accuses a probationer of testing ‘positive for the presence of Marijuana’—how do you know the document is accurate?  Well, you can test the lab report’s accuracy by cross-examining the lab technician.  For two hundred years, when a document accuses somebody of wrongdoing, the state must provide a live witness who can verify the truth of what is contained within that document.  Legislatures have attempted to get around this live testimony requirement in various ways.  Yes, this issue is closely related to your Sixth Amendment right to confront an accuser, but the Sixth Amendment doesn’t apply to VOP hearings.  (Nonetheless, you may want to check out my articles Lab Reports Suck, and Surrogate Testimony).  Putting aside for the moment any issues regarding confrontation, truth seeking is still troublesome in violation of probation hearings because a certain amount of hearsay is tolerated.  This tolerated hearsay, however, is constrained by the rule that this “hearsay must be corroborated by non-hearsay.” J.F. v. State, 889 So. 2d 130, 131-32 (Fla. 4th DCA 2004).

Typically, our court system does not permit testimony regarding what someone else said, as this hearsay evidence is deemed weak because it cannot be cross-examined.  For example, if I want to show that Steve tested positive for cannabis, I cannot testify that “Frank told me that Steve tested positive for cannabis”.  In the same fashion, I cannot testify that “I read a lab report that indicated cannabis was in Steve’s urine”.  That too is hearsay.  And, if the lab report is subsumed into the urine test itself, I cannot testify that “I read the test strip which I dipped in Steve’s urine, and the test strip indicated the color blue, and I read on the test kit that this color indicates Steve’s urine contained cannabis”.  Again, all of this used to be hearsay, and still is in most of Florida.  Unfortunately, the Fifth District Court of Appeals has decided to stand in direct conflict with every other district court in Florida by permitting this sort of testimony.  See Carter v. State, 82 So. 3d 995 (Fla. 1st DCA 2011), or Queior v. State, 157 So. 3d 370 (Fla. 2nd DCA 2015), or Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989). Continue Reading

“Believe none of what you hear, and half of what you see.” Benjamin Franklin (I think)IMG_1609

Unfortunately, violations of probation are fairly easy to prove, but there are a few rules that must be followed.  First and foremost, a violation cannot be based solely upon hearsay.  There are entire books written on the concept of hearsay, of which the first chapter would bore you to tears.  At the risk of losing you on such details, let me just say that hearsay involves a person quoting someone who is not present in court.  So, you can’t convict someone of violating probation by telling the judge that “Someone told me that the probationer did something”.  As basic as this may seem, you may be surprised to find that judges, probation officers, and prosecutors do not understand this age old concept.  To prove this to you, we’re going to take a look at the recent case of Mullins v. State, 2015 Fla. App. LEXIS 13553 (Fla. 2nd DCA Sept. 11, 2015).

Mr. Mullins was found guilty of violating his probation in two ways: (1) he failed to obtain the consent of his probation officer before changing his residence, and (2) he gave false information to his probation officer regarding his actual residence.  Yes, this is two violations for the price of one relocation.  Mullins’ violation began as so many others do–with a probation officer’s surprise home visit.  (Yes, you were thinking a positive drug test, and that’s probably first on the list, with surprise visits running a distant second place) Continue Reading

IMG_1386Everyone hates a know-it-all.  Through some force of nature beyond explanation, know-it-alls are attracted to the probation and parole profession.  I have no hard evidence of this, just hear me now and believe me later.  What you’re about to read involves a probation officer making three separate violation accusations, all of which turn out to be bogus.  It happens all the time, and your taxpayer dollars are being wasted.  You could interpret such poor probation performance in two ways.  First, some would say that these probation officers actually know the law, but out of spite, choose to violate citizens just to send them to jail.  But I think it may also be true that probation officers simply don’t know the law.  So, whether probation officers violate out of pure spite, or out of ignorance, is a discussion for another day.  For now, let’s delve into the recent case of Messineo v. State.  2105 Fla.App. LEXIS 13904 (Fla. 5th DCA Sept. 18, 2015).

Ms. Messineo pled to resisting an officer with violence and battery on a law enforcement officer (these go hand-in-hand, as you know).  She violated her probation several times, but each time she was reinstated.  For the violation we’re dealing with, her probation officer alleged that she failed to complete 40 hours of community service, failed to undergo a psychological evaluation, and possessed a prohibited weapon—a knife.

First up, Ms. Messineo was arrested on a new charge of possessing a concealed weapon, a pocketknife with a two inch blade.  She was stopped for a traffic violation, and permitted the officer to search her purse.  When the officer found the knife,  she told the officer that she often walks alone at night and needs the pocketknife for protection.  Is it legal for her to possess a two inch blade, even though probation prohibited her from carrying any sort of weapon while on probation?  Well, that depends upon the definition of a “weapon”. Let’s review some basic Florida law here.  What does Florida law say about pocketknifes?  And, is any of this so complicated that a probation officer couldn’t have figured it out?   Continue Reading

Florida has lots of folks on probation.  For the fiscal year 2013-2014, the Department of Corrections supervised 143,809 citizens.  Our success rate was 56.4%, and it costs the state $1,825/year to supervise these 143,809 people.   Florida only recouped $72 million on that $262.4 million supervision expense.  Yes, crime pays.  That being said, probation is a far better deal for we taxpayers than incarceration—those numbers are scary (a topic for another day).

Many of Florida’s probationers are sex offenders.  To qualify for sex offender probation, you need do nothing more than look at naked 16 year olds on your computer.  Sex offenders have far more conditions than standard probationers, and by standard probationers, I mean the ones that may have shot somebody, stabbed someone, or robbed someone at gunpoint.  Yes, looking at naked teenagers on your computer is a higher level of supervision than violent crimes (unless, of course, the violent crime is sexual in nature).  A sex offender must have a curfew, must not live within 1,000 feet of a school, day care, park, playground.  A sex offender must undergo a polygraph examination annually to determine if they are re-offending.  Also, a sex offender must keep a driving log, and cannot drive alone without his probation officer’s approval.

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stop sign driving.jpgViolations of probation can be difficult to prove, and this is especially true of VOP’s based upon a new arrest. An arrest is certainly enough to have a judge sign a No Bond VOP warrant, but the State will have to present more evidence than just a new arrest to sustain a VOP conviction. In summary: yes, you will be arrested for violating your probation based upon a new arrest–but no, the arrest alone is not enough to convict. To see how this plays out in real life, let’s take a look at Prater v. State, 2014 WL 2968842 (Fla. 5th DCA 2014).

BACKGROUND INFO: Prater was placed on probation after entering a plea to aggravated battery with a deadly weapon, and aggravated assault. He received 15 years of probation. Yes, I said fifteen. We all know that the Pope himself cannot successfully complete 15 years of probation. Some judges are well aware of this statistical fact, and impose long terms of probation for just that reason. One Orange County judge affectionately refers to probation as an “Early DOC Entry Program”, designed for those defendants that are not willing to take prison up front–just give them enough rope to hang themselves, and you can give them prison on the violation. Naturally, I don’t agree with giving clients sentences that they cannot handle; but then again, what I want doesn’t matter much. If a client wants something I know they can’t handle, I’ll try to negotiate comfortable options (jail?), but that’s all I can do. Too many lawyers out there think the clients work for them. Obviously, that’s not the case. I work for defendants. They tell me what to do, and I have to follow their lead even when my violation-radar is telling me that a probation plea is a bad idea. Anyway.
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question.jpgAfter 20+ years of defending criminal cases in Orlando, some questions are more popular than others. Simple, basic questions like: what’s going to happen to me? Oddly enough, this question can be more difficult to answer on a violation of probation than a new charge (sometimes). The reason is, judge’s have far more discretion on VOP’s than they do on the case initially (but, not as much as they think, as you’ll discover by reading below). VOP sentences are probably, statewide, the most unpredictable type of sentence out there. Within the same courthouse, on the same violation, you can have one defendant go to prison, the other client gets an admonishment (reinstated). As Timothy B. Schmit sang, “I can’t tell you why”. But, I can tell you more information once I know the judge assigned. Obviously, you want a lawyer that knows the judge your VOP case (yes, I’m that guy, if you’re in Central Florida). Now, let’s delve into the basics of a VOP, then point out an extremely important detail–often overlooked by most judges.

Judges have three options once they’ve found you guilty of violating your probation. First, they may revoke probation. When the court revokes probation, a sort of Back to the Future moment unfolds, and the judge can impose any sentence that was available initially. Generally, this is the only way a judge can impose a jail or prison on a violation of probation. Quite frankly, with some judges, a revocation usually means jail or prison. But, there’s a second option available to the court. Second, if a person is found to be in violation, the court may modify the probation. Modifications keep the person out of prison, but add conditions not found in the original probationary term. Typically, the probation is modified by adding community service hours, adding more years of supervision, or adding some sort of drug treatment (if the charge or violation relates to such).

The third option is that the court may continue probation. In my over twenty years of handling violations of probation, I have heard a few fair minded judges state “I find the Defendant in violation of his probation, and I am ordering him to continue his probationary term, no further sanctions.” Always a pleasure to hear that.

Now, for those of you really into the law on this subject–I want to blow your mind, everyone will be bored to tears, sorry. In a footnote to a recent case, the Second District Court of Appeals said the following (this is my favorite footnote of recent memory):

Because a trial court has discretion to revoke, modify, or continue probation, it seems possible that a factual scenario could arise in which revocation could be an abuse of discretion even where competent substantial evidence supports a finding that the violation was willful and substantial. However, we find no cases so holding. Savage v. State, 120 So. 3d 619 (Fla. 2nd DCA 2013), footnote 1.

Wow. Let’s break that down, because I can’t believe my own eyes.
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police car.jpg I’ve been practicing criminal defense here in Orange/Seminole/Osceola county for over twenty years. [these are the kind of boring sentences that excite my web optimizers, so bare with me, their arm hairs stand at attention because I’m 1) telling you folks I practice criminal defense, 2) telling you how long I’ve been doing it, and 3) telling you the geographic area that I practice] I’m not telling you this for SEO purposes, it is merely a disclaimer, since I don’t have a lot of experience with violations of probation in other states. But, having no data whatsoever hasn’t stopped me before, so here’s my scientific findings: Florida probation officers violate probationers more than they “should.” They violate probationers just because they are angry/frustrated with a probationer, rather than for actual legal reasons. And, I have several boring war stories involving probation officer antics, but I’m saving them for the next attorney conference in which we all huddle up at an expensive hotel and tell each other how we’ve “fought the good fight.” Sure, it sounds like one big circle jerk (remember that band?), but we get CLE credits for it.

Anyway, I’m not troubled by the fact that a probation officer with no legal education and no law degree would concoct a violation that happens to be illegal. No surprise there. The shocker here is that some judges are signing violation warrants that are clearly illegal. Don’t believe me? Let’s take a look at Walker v. State, 120 So. 3d 96 (Fla. 4th DCA 2013).

Walker was initially sentenced to three years of probation. While on probation, it is alleged that Walker fled the police in his car, and his car twice bumped into a cop car during the chase. That car chase led to an arrest for aggravated battery on a law enforcement officer, refusing to stop when ordered (like a baby fleeing charge), resisting arrest with violence, and disobeying a traffic signal (running a red light). Naturally, his probation was violated. The judge found him guilty of his vop (violation of probation) and sentenced Walker to five years in prison. So, Walker appealed his violation, arguing that 1) the running a red light citation shouldn’t have been a basis for a violation, and 2) his car “bumping” a police car did not constitute aggravated battery upon the officer inside. In case you’re curious as to the finer points of this type of charge, you can find a sample Motion to Dismiss an aggravated battery on my website.
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