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….]

So, Speckhardt was in jail on the violation of probation based upon the new marijuana charge, and called into courtroom. The judge informed him that the State was offering two years of house arrest with drug conditions on his violation of probation, to which Speckhardt replied “I’ll take it.” Id. The court then conducted a proper plea colloquy, asking him if he understood all the rights he’s giving up. He understood. The judge asked Speckhardt if he was ok with accepting this plea offer without an attorney, and he said yes, so the judge accepted his plea. Done deal, right? Wrong.

The vop sentence in this case was overturned for two reasons (not the same two reasons that Trey Songz and T.I. talk about though, this legal stuff is not that interesting..). So, the first reason why Speckhardt’s 2 years house arrest sentence was overturned was because the violation of probation was never reduced to writing by the probation officer. The arresting officer on the possession of cannabis went ahead and filed an “on site” violation of probation to accompany the weed charge, yet Speckhardt pled to the vop before his probation officer ever had a chance to file proper paperwork.

Now, even though the vop sentence was thrown out due to the lack of an official, written, vop affidavit, the court is permitting the probation officer to go ahead and file the appropriate paperwork. As such, Speckhardt is simply going to land himself right back where he started, so there really wasn’t much of an advantage to filing this appeal on those grounds. On the other hand, I have a sneaky feeling that Speckhardt actually violated his house arrest, so he’s challenging this plea in order to undermine his second violation of probation. If that’s the case, then more power to him.

The second reason why the appeals court overturned Speckhardt’s vop sentence is the fact that Spekchardt was never informed of his right to have an attorney before responding to the vop allegation. The court merely asked him if he felt comfortable entering the plea without an attorney. That’s all well and good, but the court was also required to inform him of his right to speak with an attorney prior to said plea. He was never told of this right. Thus, the appeals court found that “without a knowing and intelligent waiver of the right to counsel, the trial court erred by accepting Speckhardt’s admission to the violation of probation”. Id.