A New Arrest Does Not Prove a Violation of Probation

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.

THE VOP HEARING: Prater’s violation was based upon a new crime of Driving While License Suspended (DWLS). Probation obtained a copy of the DWLS citation, and the citation was admitted into evidence at Prater’s violation hearing. The prosecutor asked Prater whether or not he was driving but, because the DWLS case was still pending, Prater asserted his Fifth Amendment right to remain silent. Testimony from the probation officer indicated that Prater confessed that he had contact with law enforcement. And, that was all the evidence presented. Prater was arrested. Prater was arrested for Driving While License Suspended. Prater admitted this arrest to his probation officer. So, did the prosecutor prove this violation? No. Here’s why.

In order to prove the crime of driving while license suspended, the state needs to prove three things: (1) Prater’s license was suspended (unfortunately, this can be fairly easy to prove if a properly authenticated driving record is introduced into evidence), (2) Prater knew his license was suspended, and (3) Prater was actually driving. Faircloth v. State, 50 So. 3d 788, 790 (Fla. 1st DCA 2010), and Florida Statute 322.34(2). Which one of these did the State prove? According to the appeals court–none of the above. As such, Prater’s violation of probation conviction was reversed. This case is a fine lesson on how difficult it can be to prove a new crime with only a police report and a probation officer. It can’t be done. Even if the State had the arresting officer testify, the officer could have proven (3), actual driving, but the State would still need proof of the DL suspension, and knowledge of that suspension. Such a simple concept, and yet an appellate court had to sort this one out. Go figure.