A Matter of Grace — Early Termination of Probation

graceGod and the Devil were walking down the street, and God picked up something out of a ditch.  The Devil asked God “Hey, what’s that you have in your hand?”  God said “It’s the Truth”.  The Devil said, “Give that to me and I’ll help organize it.”

I enjoy observing how different religions organize their interpretation of the truth.   My enjoyment doesn’t involve the kind of condescension a modern scientist may have towards a primitive tribe buried deep in the jungle (how dare they refuse the enlightenment and progress of science).   My enjoyment of various religions comes from the fact that there may be a bit of truth sprinkled throughout the world’s traditions. That being said, I must confess that it is difficult to interpret Christian Speak or Christianese–and I’ve been a Christian the vast majority of my life (I’ve had my doubts, which makes me sympathize with atheists more than your average follower of a Torah observant Jew).

In many churches, I simply do not understand what they are saying.  Yes, I read the Bible.  Yes, I have a Masters Degree and a Juris Doctorate degree, so all of this thinly veiled boasting implies a level of linguistic skills that should get me through a church service, right?   Wrong. Christian phrases and mantras leave me scratching my head.  What does it mean when a Christian church claims to be “Gospel centered”?  I don’t know what this means.  The good news is, fun with words is not limited to faith.  Card games have now capitalized on ambiguous phrases.  Just try playing “Cards Against Humanity” with someone unfamiliar with politics or porn.  Half the fun of a word game like “Cards Against Humanity” is trying to explain terms like “glory hole” to someone who has never seen porn.

Anyway, our next big word for today is Grace.  The word rarely gets a mention in criminal court rooms, but there is one exception to the rule.   Florida Statute 948.05 states that a judge may, at any time, “discharge the probationer or offender in community control from further supervision”.   This, my friends, is what we call “early termination of probation”.  And, it is entirely a matter of grace.  

The phrase “entirely a matter of grace” sounds like Christianese, but it was the Third District Court of Appeals who uttered this language in the case of Ziegler v. State, 380 So. 2d 564 (Fla. 3rd DCA 1980).  The court ruled that when a probationer asks for early termination of probation, the judge’s decision to grant or deny the request is “entirely a matter of grace”.  Id.  Again, you may be asking yourself, how could a “matter of grace” ever be legal?  And, exactly what is a glory hole?  (I’m not telling, but the concept is not “Safe for the Little Ears”)

First, when the Ziegler court explained that early termination is a matter of grace, they didn’t mean that a probationer is ever entitled to early termination.  For example, let’s say you’ve completed everything, paid everything, and your probation officer agrees to early termination.  You’ve got this, right?  Fire up the bong. Wrong.  The decision is still in the judge’s hands.  And here’s the kicker–this decision cannot be appealed.  Granted or denied, both sides are stuck with the court’s decision.

In the recent case of Johnston v. State, the court held that “trial courts have unbridled discretion to decide whether or not to terminate a defendant’s probation early”.  2016 Fla. App. LEXIS 16711 (Fla. 1st DCA November 9, 1016)(emphasis added).   Hum.  What does “unbridled discretion” mean?

‘Unbridled discretion’ means that you better know the judge who is handling your early termination motion.   One of my favorite judges of all time, Richard Conrad (R.I.P.), would never grant an early termination of probation on a plea deal.  A deal’s a deal.  If you agreed to five years of probation, Conrad wasn’t going to modify that agreement down to two and a half years (thus, you had better get that early termination clause worked into the plea agreement on the front end!).

Many judges will only consider an early termination motion “at the half way point” of probation.  I hear this all the time, and there’s no legal basis for setting the bar at the halfway point. This is a legal fiction.  A judge may terminate probation at any time.  Remember, unbridled discretion.  Technically speaking, there’s nothing stopping a judge from ending ten years of probation after 10 days.

When it comes to early termination, each judge has his or her own quirks.  Some judges will not early terminate sex offender probation, no matter what.  Because early termination is a ‘matter of grace’, there isn’t much we can do to appeal such a hard line position (though no judge would admit to such a position ‘on the record’, they’ll pretend to thoughtfully consider the motion and then deny it like 100% of similar requests before it).

So, the key to an early termination of probation is understanding your judge’s quirks.  Some judges will not  consider an early termination until they have the probation officer’s position in writing.  Some judges will not consider such a motion until they have the prosecutor’s position in writing.  Yes, we know that “unbridled discretion” means that a judge need not wait for the input of probation or the State, but fair judges will not make a ruling until they hear from both sides.  Again, I’m restating the obvious, but when shopping for an attorney to argue a Motion for Early Termination, ask if he or she has ever filed such a motion in front of your judge.  If not, move on.

follow up: a special thanks goes out to New Port Richey defense attorney George Pavlidakey, as he pointed out to me that there are three dictionary definitions of ‘glory hole’ that are non-vulgar.  Did not know that.  But more importantly, George pointed out to me that an early termination decision can be appealed under certain circumstances (basically, I’m cutting and pasting his email to me, hopefully he did not copyright it).  So, here’s some early termination issues which can be appealed.  I appreciate it George.

First, a judge cannot have some sort of precognition at sentencing that tells a citizen “hey, I’m looking in my crystal ball, and I don’t see any chance of you terminating this probation early, so don’t even try” (similar to the precognition found in Spielberg’s  The Minority Report, but different).  The only way I know of that this can be done is via a plea agreement.  A client can agree to “No Early Term”, but a judge cannot impose such absent an agreement.

The court in Arriaga v. State held that such blanket bans on early termination “should be stricken . . .  Section 948.05 provides that a probationer may be brought before the court at any time to be ‘admonished or commended,’ and if it is in the best interests of justice and the welfare of society, the probationer may be discharged from further supervision. This provision requires the court to respond to the facts and circumstances that develop during the term of probation. If the probationer has fulfilled his obligations and has been a ‘model probationer,’ the interests of justice (not to mention the wise allocation of scarce resources) may require that early termination be considered. To permit the court to declare at the inception of probation that no early termination will ever be allowed defeats the salutary purpose of the statute.” Arriaga, 666 So. 2d 949, 949–50 (Fla. 4th Dist. App. 1996) (emphasis added)

Mr. Pavlidakey came up with a second, but similar, circumstance under which we can appeal the denial of an early termination request: “Normally, a trial court’s denial of a motion to terminate probation pursuant to section 948.05 is non-appealable because the trial court’s authority under that statute is ‘entirely a matter of grace.’ Ziegler v. State, 380 So.2d 564, 564 (Fla. 3d DCA 1980). However, where the trial court declines to exercise its discretion after concluding as a matter of law that it lacks the authority to do so, as here, we may exercise our certiorari jurisdiction.” Enea v. State, 171 So. 3d 219, 221 (Fla. 5th Dist. App. 2015)

Thanks George.