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.
Let’s start with the violation for a traffic citation. Even though we defense lawyers know that a traffic citation will not violate a probation sentence, words can be confusing. Case in point: some judges will put a person on probation and state “You must obey all laws while on probation.” Ok. Even traffic laws? “I can’t get a speeding ticket?” No, you can get a speeding ticket, and that will not violation probation. “But the judge said ALL LAWS.” A judge’s general request to “obey all laws” does not mean “all laws”. You can drive 55 in the 54 and probably not violate probation (first Jay Z reference of the year). However, a judge may prohibit certain traffic citations. For example, let’s say the initial offense involved reckless driving (criminal) by way of excessive weaving in and out of traffic. Without debating whether or not this could even be a crime, it would be permissible for that judge to impose a special condition of probation prohibiting the probationer from improper lane changes, or careless driving. That’s possible.
In Walker‘s case, the court overturned his violation of probation for running a red light, because a non-criminal traffic citation cannot support a violation of probation. But what about the “aggravated battery on a law enforcement officer” for bumping a precious cop car? The appeals court examined the officer’s testimony at the violation of probation hearing in light of the rule on aggravated battery by vehicle, a rule which requires “evidence that the impact of the vehicles injured the occupants, or evidence that the collision caused the occupants to brace themselves, jostled them about, spun them, or moved them about within the vehicle.” Id at 98. At the violation hearing, the police brought photos of their vehicle “that showed only minor damage”, but “the State presented no other testimony or evidence showing that the officer was physically affected in any way by the collision.” The officer did testify that he was ‘scared’ by the impact”. Id at 99. So, the appeals court found that there was insufficient evidence to find a violation for aggravated battery on a law enforcement officer. With these two probation violations struck down, the appeals court sent the case back for re-sentencing on the remaining condition violations. Hopefully, the re-sentencing (set for March 21, 2014) will be something less than five years. Maybe time served?