New Law for Technical Violations of Probation

cayman7

Rum Point, Grand Cayman

Every profession has its own language, and its hard for outsiders to grasp what’s happening, especially given the acronyms thrown around.  Our military excels at the creation of acronyms.  For example, the government doesn’t really STEAL, they simply Stealthily Transport Equipment to Another Location.  Yes folks, don’t try this at home, as it will get you arrested.  As the bumper sticker claims, “Don’t Steal, the Government Hates Competition”.

Criminal defense work has it’s own acronyms, though not as colorful as the military’s.  We call violation’s of probation “VOP’s”, and VOP’s are split into two main categories, (1) technical violations or (2) new law violations.  Basically, if DOC (Department of Corrections) is supervising you or a loved one, there’s only two ways probation can be violated.  First, an arrest for a new charge.  That’s what we call a “new law” or “substantive” violation.  This is shocking, I know, after all, who would commit a new crime knowing that it would lead to a violation?  Shouldn’t these folks be on their best behavior?  Well, as the bumper sticker says, “Shit Happens”.  (No more sticker wisdom for the next couple of months, I promise)  

The second way a probationer can violate probation is by not completing a condition of probation.  One tiny technical violation can lead to prison time.  Defined in the negative, a technical violation is any violation that doesn’t involve a new arrest for a misdemeanor or felony.  To commit a technical violation, the probationer must have dropped the ball on one of the many conditions of probation, and I’ve listed the standard conditions of probation here.  These conditions may be “standard”, or “judge ordered”.  The judge may have wanted community service, or a letter of apology, or restitution, an anti-theft class, a Driving Under the Influence school, or whatever.  If a probationer fails to complete something, that’s a “technical violation”.  Community service not completed?  That’s a technical violation.  Fail a drug test?  That’s a technical.  Let’s say you complete the community service, but the judge asked you to do it in three months and it took you six months.  That’s a technical violation, because everything must be completed as per the timeline laid out by the judge.

With the basics out of the way, let’s discuss the new VOP law that took effect on July 1st, 2016 (a copy of HB1149 can be found here).  The law creates a whole new punishment scheme for technical violations.  Every county now has the power to create it’s own alternative punishment scheme for technical violations of probation, and a probationer’s participation will be completely voluntary.  If this new law works, it should reduce the number of people in prison and jail for violating probation.

But, there’s a serious problems with this law–it requires the probationer to waive his right to be represented by legal counsel.  You heard me.  We live in America.  It’s 2016.  But, you can’t have an attorney on a criminal case?   We’ll have to see how this pans out, so believe me now and hear me later; any criminal law which requires a defendant to waive his right to an attorney is likely to run afoul of the Constitution.   The right to counsel attaches pretty quickly to situations that expose a citizen to incarceration, so this new law is going to force citizens to negotiate their fate without aid of counsel.

So, I hope that this new law will reduce the waste of taxpayer money that goes into technical violations.  The fact that our legislature recognizes this gives me hope.  I practice primarily in Orange County, Seminole County, and Osceola County.  Nothing is in place for Central Florida, but I expect that to change soon.  When it does, I’ll let you know how its going.