Articles Posted in VOP / Violation of Probation

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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urine test.jpgWords are important, right? And, everybody thinks they have the right to free speech, but that’s not so inside the confines of a court room. For criminal cases, what can be “said” is limited to what the witness actually knows. Typically, a witness is not permitted to talk about things of which they do not have personal knowledge. For example, a cop cannot tell a jury that a pill found in the defendant’s pocket is Hydrocodone, even though the pill is inscribed with “Watson 853”, and the officer looked up the writings on the pill at to discover that a “Watson 853” is 10mg Hydrocodone and 325mg of tylonol. You see, the officer has no personal knowledge of what the pill is, he is only testifying to what he read from a website. That’s hearsay, and it cannot be admitted into evidence.

Unfortunately, the hearsay rule is somewhat lax in violation of probation hearings. In a violation of probation hearing, hearsay is admissible–and should still be objected to–but hearsay cannot be the sole basis of the violation. [practice tip: It’s kind of weird, if you don’t object to hearsay in a violation hearing, it’s as though the evidence is not even hearsay. But, if you do object, it is acknowledged as hearsay but admitted anyway for a limited purpose] Now, lab results are almost always hearsay, so how does the government prove that a urine sample tested positive? Can the probation officer testify to this? Let’s take a look at how this plays out in court.

The case is Wagle v. State, 951 So.2d 114 (Fla. 5th DCA 2007). Wagle was convicted of violating his community control for two reasons, the second reason being that he failed a drug test. He was sentenced to five years department of corrections. Here’s how the “positive drug test” went down. His probation officer conducted a field test on Wagle’s urine, and the test was positive for cocaine and barbiturates. Fortunately, Wagle denied using any illegal drugs after being questioned (the mere admission to using drugs can get you violated, even if the drug tests are suspect. Don’t admit! Don’t lie, but don’t admit, does that make sense? Good.). So, based upon this denial, the probation officer decided to run a second drug test on the urine. This time, the test results were negative, no dirty urine this time. Boy, these tests are real accurate, aren’t they? Real “scientific”. Anyway, after getting conflicting results, the probation officer decides to send the urine to the lab for further testing. The laboratory report came back as follows: “Specimen Drug Status: NEGATIVE: Specimen Validity Status: DILUTE.” For all those out there unaware, it is a violation of probation to dilute urine while on probation. But, how can they ever prove someone intentionally diluted their urine?
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chart board.jpgWay back in the day, I had the pleasure of practicing law before the Honorable Judge Richard Conrad in Orange County. This was in the early nineties, in my days at Joe DuRocher’s public defender’s office. An assignment to Conrad was not an easy one, but everyone who truly knew Judge Conrad loved him. Myself included. Anyway, a plea in front of Judge Conrad was so fast, you might miss it if you turned away for a second. Basically, it went something like this:

“Sir, is this your signature on this plea form? Did you read it and understand it? Good, your sentence is XYZ. Next case…”.

Bam, that fast. He could do 20 pleas in 15 minutes, no kidding. Of course, we were done with court everyday by 10:45, which gave us more time to work on defending our clients. No afternoon court. There was a certain synergy in Conrad’s division brought about by the speed at which he ran his courtroom, thus returning prosecutors and defense attorneys back to their desks for the rest of the day to work, rather than waiting around in court. Yea, the good old days.

So today, we’re going to discuss what can happen on a “quick plea”. With all the violations of probation (vop) out there, it’s important to address what happens procedurally. First off, every probationer who has been violated has a right to written notice of his violation. Often, this is called an “affidavit of violation of probation”, and it must include the conditions of probation alleged to have been violated. Second, every probationer has a right to an attorney. And, the probationer should be told of this right. So, let’s take a look at what happens when two basic vop procedures are violated.

In the recent case of Speckhardt v. State, the defendant pled to two years probation on burglary and grand theft charges. 110 So.3d 85 (Fla. 2nd DCA 2013). Just after the halfway point of his two year probation term, Speckhardt was arrested on a new charge of possession of marijuana. [CRIMINAL DEFENSE PRACTICE TIP: I don’t understand why he didn’t apply for an early termination of probation once half of the probationary period was completed. This is what happens when probation is not terminated early….]
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friends.jpgCan people really read minds? Do paranormal abilities exist within human nature? Believe it or not, these questions tie into a recent Orlando violation of probation (VOP) case. Yea, it’s kind of a stretch, but bear with me, I’ll get around to it.

Before we dive in, it will be helpful to sum up the standard conditions of probation: (1) do what probation tells you to do, (2) stay out of trouble, (3) stay away from people who are in trouble. Easy enough, right? The same stuff your mom told you as a child, only your mom won’t throw you in jail with no bond should you violate her conditions. Today’s glimpse into the inner workings of Florida’s criminal courts involves the standard condition of probation which states that “You will not associate with any person engaged in criminal activity”.

Let’s take a look at the violation of probation filed in Clayton v. State, 100 So.3d 725 (Fla. 5th DCA 2012). Clayton was on probation for robbery with a firearm. So, how do you get probation on such a serious charge? Well, you start with prison time, and back it up with probation. [Criminal Defense Attorney Practice Note] don’t follow a prison sentence with probation, unless the discount up front is too good to pass up. Anyway.

Clayton’s violation comes by way of a new possession of marijuana charge, and an allegation of hanging out with the wrong crowd. Clayton’s probation conditions mandate that he “not associate with any person engaged in criminal activity”. The problem is, Clayton is not a mind reader. Clayton does not possess paranormal abilities which would permit him to determine whether or not the people he associates with are engaged in criminal activity. Bernie Madoff hung out all the time with all sorts of people. For those on probation, that would have been a violation, right? After all, Madoff is one of the biggest criminals of our time, so he should have caused an avalanche of probation violations for those probationers caught hanging with him. And, that’s sort of what happened to Clayton. Sort of.
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handcuff 2.jpgYou’ve heard the sayings about Orlando: come here on vacation, leave on probation, come back on a violation. This old saying sounds like the truth, in part because it rhymes so well [Jesse Jackson could have come up with this line, but don’t quote me on that].

Violations of probation (VOP, for short) come from issues found within the standard conditions of probation, but today’s analysis will focus on those violations that arise from failing to uphold a special condition of probation laid out by the judge. In Ezra Maddox v. State of Florida, Maddox was sentenced to five years prison on his violation of probation on an aggravated battery charge. 97 So.3d 332 (Fla 2nd DCA 2012). Let’s see why an appeals court set him free.

Initially, Maddox was sentenced to a year in jail, followed by probation. The jail term was to terminate early once bed space became available at a local drug treatment facility. Maddox entered the drug treatment center, but was discharged before completion. Like clockwork, a violation of probation was filed based upon the unsuccessful completion of treatment. Fortunately, that vop was dismissed. Now, here’s where things got a little strange. The judge that dismissed the first vop then ordered Maddox to complete a different treatment program, and ordered Maddox to abide by a curfew. And there’s the problem. Where did this curfew thing come from? Sure, the initial sentence provided for drug treatment–but no deal was ever cut that involved a curfew. A curfew was not part of the original probation, it was added after the first violation was dismissed.
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beach chair.jpgWhen a person is arrested in Orlando and spends five (5) days in jail before bonding out, we call that “five days credit time served”. But what happens when the same person is arrested on two cases, and spends that same five days in jail? If the system is functioning correctly, the citizen should be given five days credit time served on each case. Unfortunately, things don’t always go quite so smoothly.

Take the case of Milligan v. State, 88 So.3d 1031 (Fla.App. 2nd DCA 2012). Steven Milligan was charged with violating his probation (VOP) on two separate felony charges by being arrested on a new allegation of burglary of a conveyance. Both of Milligan’s probation periods were running at the same time (concurrent). (It’s a pretty common for citizens to be on probation for multiple charges because ‘global plea offers’ often package up various charges into one big probation sentence)

Now, we all know what typically happens on a felony VOP, the probationer is served with a no bond warrant for violation. “No bond” simply means that the probationer must sit in jail until the violation is resolved, he cannot bond out. And to make matters worse, here’s where government incompetence comes into play–Milligan was only arrested on one of the violation cases (some would say this is a malicious tactic of various jail systems to rob defendants of their credit time served, and that’s possible too, more on this later).

Milligan’s first VOP arrest was on July 25th. Logic would dictate that Milligan would be arrested on both probation violations, as he was serving two probation sentences at the same time. But that’s not what happen. So, Milligan was sitting in jail, starting on July 25th, on only one violation–not both. Then, on October 16th, he was served with the second violation of probation warrant.
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book heart.jpgHere in Orlando, violation of probation (VOP) cases can have serious consequences. Duh. To make matters worse, some judges lack the intellect required to discern the nuances of Florida law, and instead they simply believe everything a probation officer says. By doing so, these judges become a rubber stamp for probation officers and prosecutors (why even bother becoming a judge?).

CONFESSION: I’m not a big fan of Federal law, but the Feds have it right when it comes to probation violations, because Federal law limits the punishment which may be inflicted on a vop case. The same constraints are not found under Florida law. Under Federal law, many violations carry just a few months in jail as punishment. But on a state case, that same violation can send a citizen straight to prison.

In Brown v. State, 86 So.3d 1225 (Fla.App. 2nd DCA 2012), Brown was found guilty of violating his probation due to a curfew violation. Now, curfew violations are a tricky subject. Florida law provides very little guidance when it comes to how “late” a probationer can be. Can you be one hour late? Two hours late? 20 minutes late? Well, that depends. Even though Florida law does not quantify how late is ‘too late’, our laws do provide that a judge may only sign off on a violation of probation warrant if the violation is “substantial”. So, how much lateness is considered “substantial?” At this point, theoretically, a VOP judge should be able to use his or her God given intellect to decide whether or not a no bond warrant should be issued. Here’s what happened to Mr. Brown.
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