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.

Clayton was hanging out with Crystal Holder. Nothing wrong with that, right? She’s not a criminal, right? Right, she’s not. But…she was driving, while Clayton was in the passenger seat. Crystal gets pulled over for a traffic violation, only to then be arrested for driving without a valid driver’s license. Barely a criminal offense, really. But thanks to some overzealous probation officer’s handy-work, Clayton was violated for associating with Holder, “who was a person engaged in criminal activity (driving without a valid license).” Id. Also, there was marijuana found in various parts of the car, so Clayton was violated for possession of cannabis (found in the car). Yea, certainly it was pretty dumb of Holder to be driving without a license in a car containing marijuana in multiple places. However, it’s also this same level of stupidity that keeps the criminal justice system fully funded. So there.

The appeals court overturned Clayton’s violation of probation based upon his association with Holder, because, “in order to revoke the defendant’s probation, there must be evidence the violation is ‘the product of a knowing and willful act.'” Id. at 726 [citation omitted] The court went on to find that “[t]here was no evidence that Clayton was aware Holder did not have a valid driver’s license when she decided to drive the vehicle.” Id. Seems like the appeals court does not require the same level of psychic knowledge that the probation officer did. No surprise there. Unfortunately, the appeals court did uphold the violation based upon the weed found within the car. The silver lining here is that, maybe, when this case was sent back to the original judge after having half of the violation struck down, Clayton got a little discount off his original VOP sentence. That’s usually how it works.