Recently in VOP / Violation of Probation Category

I've Violated My Probation, What Will the Judge Do?

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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A Violation of Probation for a Traffic Citation -- Is This Legal?

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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Can Diluted Urine Violate Probation?

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 drugs.com 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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Efficient Judges Sometimes Go Too Far

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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Hanging with the Wrong Crowd Can Cause a VOP

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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Illegal Conditions of Probation Can't Support a VOP

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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Some Judges Don't Give Enough Credit

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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VOP Judge Abuses Discretion

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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A New Arrest, By Itself, Is Not Enough To Violate Probation

September 13, 2012 by The Law Office of John Guidry II

prison.jpgBeing on probation in Orlando is like having a dark cloud follow you wherever you go. Of course, I haven't personally seen this dark cloud, and there's no scientific evidence to support my theory -- but after nineteen years of defending VOP cases, it seems that citizens who are on probation attract more trouble than those who are not. (sure, you statistics folks are going to easily explain away how this 'dark cloud' is nothing more than a foregone conclusion given the population set we're dealing with--but why ruin my touchy feeling conclusions with hard math?).

Given this dark cloud hovering above probationers, it's fairly common to see these folks re-arrested on new charges. Upon re-arrest, here's a pretty common observation: "I'm screwed, I'm on probation and I've been re-arrested". Well, not so fast Mr. Negativity. The truth is, a new arrest will lead to the filing of a violation of probation warrant based upon the new arrest, and that's no fun. However, the good news is that this new arrest does not necessarily mean that the government has enough evidence to find you guilty of violating your probation. That's because a new arrest is not really the reason for the issuance of the violation warrant--the real reason is the allegation that you've broken the law. Thus, when the state simply attempts to prove that you've been "re-arrested"--you will win the violation of probation hearing. Don't believe me? Here's one example.

The case is Person v. State, 83 So.3d 940 (Fla. 3rd DCA 2012). Person was found guilty of violating his probation and sentenced to the maximum of thirty years prison. One of the violations was a new allegation of aggravated battery. Basically, this violation claims that Person "failed to live and remain at liberty without violating any law". The court heard testimony that indicated there was, indeed, probable cause for his aggravated battery arrest. As such, the court found him guilty of violating that condition.

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Good Judges Make the World a Better Place

earth_black_edition.jpgWe all presume that the title of "judge" requires the exercise of some judgment. But when you consider the fact that our legislature requires judges to impose minimum mandatory sentences--on everything ranging from misdemeanor DUI, misdemeanor domestic violence battery, all the way up to trafficking cases--there's often time little room for a judge to maneuver in one of the most important decisions a judge can make. Sentencing.

We taxpayers pay good money to our judges so that they can sort out real life human dramas. For example, what can a judge do with a defendant that (1) has a mental problem that requires special treatment, yet (2) the legislature's score sheet "requires" that the judge impose a minimum mandatory prison sentence? The good news is that there is a tiny loophole in the sentencing law found in subsection 921.0026(2)(d). This subsection permits the judge to go below a mandatory sentence if the defendant requires specialized treatment for a mental disorder. Sounds easy, right? Not. In reality, this subsection is rarely used, because the burden is on the defendant to show that the needed treatment is not available at the Department of Corrections. Even though the subsection does not spell out such a requirement, our courts have interpreted the statute as requiring that "the defendant must also establish...that the Department of Corrections cannot provide the required 'specialized treatment'." Yikes. How do you prove this negative?

There is light at the end of this tunnel. The light comes from the case of State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012). Harry Chubbuck violated his probation (vop) by testing positive for cocaine, and the state requested that the court impose a minimum sentence of 37.65 months in prison. You heard me. 37+ months for testing positive for cocaine on a VOP. Harry's criminal defense attorney argued that the court should give him only the 97 or 98 days time already served in jail, because Harry is very sick.

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Lie, or You're Going to Violate Probation

hand_on_a_bible.jpgWe're continuing our series on Violations of Probation (VOP). It's in the air here in Orlando, so why fight it? The focus today is on the money making mandatory counseling sessions that come along with some probation sentences.

"Any recommended treatment or counseling" is a common phrase used by judges, and it translates: "you're about to pay a boat load of money, and time, to some counseling program that has no real incentive to release you". Imagine being in a business where you can dictate how long a citizen must continue to make monthly payments to your company--or they go to jail! Sounds like the business model of Big Pharmaceutical companies that would rather have patients on a monthly pill popping program than find a cure.

Don't get me wrong. Many defendants need counseling. Many human beings need counseling. But, every single DUI conviction comes with alcohol treatment and counseling--even if no alcohol was found in the person's system! Does that even make sense? No, but it makes money. Yes, we need to help the defendants that truly have an addiction, and find a way to weed out those who don't.

For example, every person convicted of domestic violence battery must attend and complete a batterers intervention program. No problems there, right? Wrong. This program requires the 'participant' to admit to having battered another human being. Participation requires an admission of guilt. That's when a probationer is faced with the decision to simply lie and complete the treatment--or tell the truth and be terminated from the treatment. Of course, termination from treatment will then violate probation, and a probation violation carries an arrest plus jail or prison time. So, what do you do?

Let's rewind to see what gets a person into a treatment program in the first place. For many, a crime was committed and they're paying the price. However, not everyone who enters a plea is guilty. Many folks chose to enter a no contest plea rather than risk losing everything after a trial. For those of you who don't know, the increase in mandatory minimum sentences (especially for trafficking in oxycodone cases) has made it more common for innocent defendants to enter a plea rather than risk mandatory prison time over $50 worth of pills.

The problem is, that the "treatment" program that comes along with a guilty plea also requires an admission of guilt. So, if a defendant doesn't want to risk mandatory jail on a domestic battery charge, a guilty plea will require counseling. But, the batterers intervention counseling program requires an admission that, yes, you have beaten your wife/girlfriend/etc. if you tell the truth--that you are innocent and simply entered a plea so as to not lose your job/home/sanity--they'll terminate the treatment and that termination will send you to jail on a violation of probation!? A classic Catch 22. It happens more often than you think. Let's take a look at a few cases in which the defendant's stood up to the treatment programs, told the truth, and were sent to jail.

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Missing a Probation Visit Not Enough to Support a VOP

dont_be_late.jpgIt's "Violation of Probation Month" here at the law office, and unfortunately, VOP's are in the air, or so it seems. Of course, being on probation isn't fun, as many of Orlando's probationers will testify. And just in case life isn't busy enough these days, probation adds significant extra appointments, rules, and regulations to the everyday life of a probationer. Sometimes, a probationer forgets one of these appointments and ends up in jail on a violation of probation accusation. What now?

One of the most basic rules of VOP defense involves the following question: did the probationer "willfully and substantially" violate his probation? Let's take a look at an all too common scenario as found in the real life example of Perez v. State, 884 So.2d 306 (Fla. 2nd DCA 2004). Perez was found guilty of violating his probation, at which time the judge extended his probation one year. Perez then violated this extra one year of probation and received a seven year prison sentence. The line of attack here was simple: the appellate attorney challenged the validity of the one year extension of probation. Here's a breakdown of the battle.

The initial violation was based upon the fact that Perez failed to present himself for random drug testing at the times his probation officer requested, between the hours of 4pm and 5pm. Perez showed up at 5:20pm, and probation told him to come back the next day. Perez was able to come into the office to be tested the next day, and did so (after 19 years of criminal defense work, I find this to be a fairly common basis for a VOP. An officer tells a probationer to jump--they better jump, or else. But, that's not really the law). The trial court found this failure to appear to be enough to violate Perez, and as punishment extended his probation one year.

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Probation Reinstatement an Option for most VOP offenders

gavel.jpgHere in Orlando, I'm seeing a surge of violation of probation (VOP) activity, and I can't explain why--much in the way that some UFO hunters find a rash of sitings in various parts of the country that go unexplained, chalk this one up to that phenomenon as well. So, even without knowing the reasons for this increased level of activity, let's address a few common VOP issues.

One positive thing to keep in mind is that, most of the time, it's possible to reinstate probation after a violation. But sometimes, judges are mistaken as to what their sentencing options are after finding a defendant guilty of violating probation. A real life example of this can be found in the case of Griffin v. State, 783 So.2d 337 (Fla. 5th DCA 2001). Griffin was given a nine year prison sentence on his violation of probation, with the underlying offense being burglary of a dwelling, grand theft, and possession of a firearm by a convicted felon. Griffin had already served 10 years prison on the case (including a 3 year minimum mandatory on the firearm charge).

Griffin admitted to violating his probation, but in a nice sentencing move, he called his mental health counselor to testify that he had been physically, sexually and mentally abused as a child. After all this abuse, Griffin had never been able to stick with counseling for more than four weeks at a time, but both he and his counselor explained that he was now ready to make a change (Griffin had already set a personal record of six weeks counseling as of the sentencing date). Griffin scored more prison time, and the VOP sentencing judge sympathized, but felt that his hands were tied with no option to give any other sentence--even though Griffin's defense attorney explained that the court may simply modify or continue Griffin's probation! (judges don't always listen, do they? Well, that's why we have appellate courts...).

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Debtor's Prisons, Right Here in Florida

prison cell.jpgThis is America, right? We have a Constitution, right?

Well, there's lots of 'words' in our Constitution which, apparently, some judges haven't taken the time to read. Bottom line, our Constitution (Federal and State, for those keeping score) bans imprisonment for debt. Even so, some Orlando probationers find themselves unable to afford the massive amounts of fees, fines, court costs, restitution, classes, surcharges, counseling, and so forth and so on. We all know what happens when a probationer cannot afford to do any of the above listed items--a violation warrant is filed by the probation officer.

On the technical side of things, we have Florida Statute section 948.06(5), which sets up the debtors prison scenario by declaring that, "In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision as provided in s. 948.09, as directed, is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so."

See the problem here? The probationer carries the burden of proving his poverty, rather than the State. In a Violation of Probation case, it is the state that is bringing a lawsuit against the probationer for failing to pay something--so it should be the state's burden to prove such. But, that's not so, due to the 'burden shifting' found in Florida law, under section 948.06(5) (highlighted above).

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A Judge's Courtroom Rules Get Struck Down

supreme court.jpgThey say a good lawyer knows the lawyer, a great lawyer knows the judge. If you simply know the law here in Orange, Seminole, or Osceola County, you're only halfway there. An attorney must also know the judge. There are several different rules that control the behavior of criminal defense attorneys and defendants in criminal courtrooms. But sometimes, the judge's rules cross the line. Let's examine one such instance.

Back in 2010, Jeffrey Tishner was placed on five years probation for burglary and grand theft. Tishner violated his probation (VOP) with a new DUI arrest, and the VOP had a $10,000. Tishner v. Cameron, Sheriff, 75 So.3d 787 (Fla. 2nd DCA 2011). Tishner bonded out on the VOP, hired an attorney, and the criminal defense attorney waived his appearance at the VOP arraignment, pursuant to Florida Rule of Criminal Procedure 3.160(a). This criminal rule states that "counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived."

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