Articles Posted in VOP / Violation of Probation

(I know, the title of this article couldn’t be more exciting, sorry, my creative title juices are not flowing at the moment.)IMG_1057-e1493239002680-225x300

How hard is it to prove a negative?  Urban myth claims that “you can’t prove a negative”.  Take the rather cliched statement notion that we can never prove that “God does not exist”–because we can’t prove a negative.  This is intellectually lazy nonsense, as there are good arguments both for, and against, a Creator.  That being said, the word “God” creates friction between myself and my web optimizer people, as they deem such discussions “difficult to optimize for search engines.”  Hum, what do these SEO people do, anyway?  Ok, I’ll stop.

Still, it’s easy to prove a negative.  Take the following statement: No Ferrari’s exist in John’s garage. Can we prove this negative?  Sure.  Open my garage door, and bam, there’s no Ferrari (most statements can be transformed into a negative). Speaking of cars, I would like an Italian sports car–of any ilk–even an Alfa Romeo (basically, some of the least expensive Italian cars out there).  [So, if you’re really interested as to why you can prove negatives, and I bet none of you are, but just in case, check out Steven D. Hales article “Thinking Tools: You Can Prove a Negative”].

Many violations of probation involve proving a negative.  Let’s delve into why probation fails on such issues. Continue Reading

clockIf I had a dollar for every time someone told me “Oh, its only a technical violation of probation”, I would be rich.  Actually, if you consider the fact that 71% of the world lives on less than $10/day, I probably am rich.  And, so are you.

Now, I hate it when people tell me how good I have it.  As any economist would tell you, we tend to adjust to our conditions rather quickly.  This is why a billionaire will have just as bad a day due to his poorly presented blue-fin tuna lunch as I will have when my filet-o-fish from Mickey D’s stays in the fryer too long (and, this is why Tim Ferriss recommends we practice poverty).   No matter how rich you are, resist the temptation to compare yourself to others.  A recent example of how this can go wrong is German billionaire Adolf Merckle.  As the tag “billionaire” suggests, he was the richest man in Germany.  Then, his company took a hit in the stock market, and his fortunes declined $4,000,000,000.   This four billion dollar loss dropped him to the third richest man in Germany.  Due to this fact, Merclke committed suicide.  Now, he still had over 8 billion dollars after this loss, but compared to his rich friends, he was no longer number one.  He was number three, and he couldn’t bear the thought of it.

Would Merckle’s life been any different having 8 billion vs. 12 billion?  Well, the man drove a 4-year old VW Golf.

Ok.  Back to the law.  This brief article is a tad more technical than my typical ramblings.  We’re going to delve into how a technical violation of probation can be dismissed.  Let me set the stage.   When someone  is violated late in their probationary term, we must pay very close attention to probation’s “termination date”, because the violation must be addressed before the termination date.   For example, say you’re put on two years of probation, beginning March 28, 2015.  My math isn’t perfect, but roughly speaking, this two year probationary term ends on March 27, 2017.  Just a little over a week from today.  Now, if probation files a violation and you are picked up on the warrant on March 28th, the violation must be dismissed.   Why?  Keep reading.  (exciting, I know)   Continue Reading

Have you ever seen a fist fight live?  I hate fist fights, and violence in general (not liking violence is a bold statement, I know, I’m really going out on a limb here)commandments.   It is painful to watch such raw  violence.   And, do you know what happens to the guy who gets knocked down after taking one too many fists to the face?  The fight is over, right?  Wrong.  The guy on the ground will now be the proud recipient of several kicks to the head and body.  The cliche is true, you shouldn’t kick a man while he’s down.

Kicking someone while they’re down comes in many flavors, not all of them are physical.  Today we’re going to review a beat down taken by a probationer at the hands of her probation officer, a prosecutor, and last but not least–an “honorable” judge gets a few licks in that would make a UFC fighter wince.

Our story begins at a motel, the kind that rents by the week.  The folks who live in these places are just one dollar away from homelessness.  Suffice to say, you have to be down on your luck to live in such conditions, and you should be well armed to visit (at least the ones in Central Florida).  Ms. Charles was in just that sort of bind.  She was on probation, and living in a motel with her two young children.  Rent came due, and Ms. Charles didn’t have it, so she was evicted.  At this point, she was homeless with two kids and no money.  Many prison terms start in this fashion, and Ms. Charles was no exception to the rule.  Charles v. State, 2016 Fla.App. LEXIS 16217 (Fla. 4th DCA 2016). Continue Reading


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)   Continue Reading

“Know the rules well, so you can break them effectively.” — Dalai Lama XIVlab2

Every country on Earth has criminal rules, and they all sound remarkably similar.    We Americans enjoy a “presumption of innocence”, and Article 37 of the Constitution of the Islamic Republic of Iran states that “Innocence is to be presumed”.   Two countries, both with a “presumption of innocence”.  Do you think they mean the same thing?   It is our court’s interpretation of these words that given them teeth and meaning. Trust me, you would rather be presumed innocent in Florida, versus Tehran.

From time to time, American courts chip away at the meaning of our criminal laws, and as such, we are creeping towards interpretations more in line with Tehran than Miami.  To demonstrate this slow erosion, let’s review the recent Florida Supreme Court case of Florida v. Queior, 2016 Fla. LEXIS 841 (Fla. 2016).

This article may start to sound a bit like an episode of Inside Baseball, because the erosion of our rights can be subtle, and it’s buried deep within how our courts define (and re-define) legal concepts.  The bad decision in Queior arose out of a violation of a probationer because he tested positive for drugs.  Let’s begin with a bit of background on how a violation of probation works.  It all begins with the old saying, “Come to Florida on vacation, leave on probation.”   Continue Reading

cocaine linesHow many products these days claim to be “scientifically proven”?  Proven to kill 99% of all germs.  Eliminating 95% of all odors.  Clinically proven to smooth wrinkles, or shrink your belly.  How much “faith” can we put into these scientific claims?   It depends on who is making the claim, right?  Is it the doctor that conducted the study?  Or, is it a janitor who got a good night sleep at a Holiday Inn Express?

Typically, our court system has done a decent job of keeping out scientific evidence that cannot be substantiated.  The main vehicle for testing scientific assertions is cross examination.  When a prosecutor presents a witness who makes scientific claims, we defense attorneys are able to cross examine this witness to test accuracy.  At times, legislatures have tried to help prosecutors by passing laws that permit scientific assertions without the need to back up the claim with live scientific testimony.  The United State Supreme Court has struck down these government attempts to insulate scientific conclusions from cross examination from folks like me.  For example, Massachusetts passed a law permitting prosecutors to introduce lab reports as proof of a drug’s identity.  (See Melendez-Diaz v. Massachusetts, 557 U.S. 1256 (2009), my article on this issue can be found here).  The Supreme Court struck down this law, finding such a maneuver unconstitutional.  In essence, the prosecutor is not permitted to introduce a piece of paper from a laboratory as proof of a substance’s identity (cocaine, or heroin, for example).  They must present a scientist who knows something about the science underlying the lab report.  Then, the lab report is admissible.

When prosecutors were unable to identify “cocaine” by simply presenting a piece of paper from a laboratory, the prosecutors decided they would call laboratory employees to the stand to testify as to what the lab does, etc etc.  They would bring in anyone to testify.  The receptionist from the lab, for example—rather than an actual scientist—so as to prevent defense attorneys from cross examining someone who understands the science.  Without meaningful cross examination, why not believe an official looking document like a lab report?  In other words, some prosecutors don’t want their “science” to be challenged, so they present witnesses who cannot not answer scientific questions on cross examination.  Once again, the Supreme Court stepped in and, in the case of Bullcoming v. New Mexico, the Court held that such a tactic was unconstitutional (131 S. Ct. 2705 (2011), you can find my article on this issue here).  In order to admit a scientific document into evidence, the prosecutor must present the scientist responsible for creating the document (or, at least somebody who knows something about it).  With this in mind, let’s take a look at what prosecutors in Florida are trying to get away with in dirty urine violation of probation cases. Continue Reading

Violations of probation (VOP’s) come in all shapes and sizes.  Some are more difficult to prove than others.  A dirty urine violation, for example, is deceptively complex.  Even a curfew violation may not be as simple as you might think.  But today we’re going to review what happens when a citizen is on probation and violates by getting arrested on a new charge.  Nothing gets a prosecutor more giddy than a VOP case based upon a new arrest.  But, don’t be distracted by a prosecutor’s confidence, as their zeal often blinds them to the weaknesses in their case.  I’m all for a little confidence, it makes my job masks

The recent case of Vidale v. State sheds some light on just how difficult it can be to prove up a new law violation at a VOP hearing.  166 So. 3d 935 (Fla. 4th DCA 2015).  Vidale was serving a two year probationary term for dealing in stolen property and throwing a deadly missile.  Like all other probationers, he had two prime directives while on probation.  First, don’t get arrested.  Second, don’t hang out with criminals.  Easy enough, right?  These conditions pretty much parrot every mom’s advice on Earth.  Unfortunately, Vidale found himself in jail on a violation of probation due to a new arrest for burglary of a dwelling and possession of cannabis.  Here’s the testimony at the violation of probation hearing. Continue Reading

Cross examination is the greatest legal engine ever invented for the discovery of truth.”  John Wigmore (Wigmore wrote the book on Evidence)IMG_1161

The age-old tool for ferreting out truth in the trial process is the right to cross-examination.  For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.” United States v. DiLapi, 651 F.2d 140, 149-151 (2d Cir. 1981)

Cross-examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974).

How do we really know something is true?  This question dates back to Plato, and even though we haven’t made much progress philosophically, our legal system provides various rules designed to ferret out the truth.  At its core, evidence against a citizen is tested by cross-examination.  If you limit cross-examination, you have effectively slowed down “the greatest legal engine ever invented for the discovery of truth”.  The recent decision in Marquis Bell v. State has dumbed down the violation of probation process, devolving judges into rubber stamps for law enforcement. 2015 Fla. App. LEXIS 14993 (Fla. 5th DCA October 9, 2015).   To understand what went wrong in Bell, let’s get back to the basics.

How can you test if a person is being truthful?  Cross-examination.   How can you test a document for truthfulness and accuracy?  Cross-examination.  If a lab report accuses a probationer of testing ‘positive for the presence of Marijuana’—how do you know the document is accurate?  Well, you can test the lab report’s accuracy by cross-examining the lab technician.  For two hundred years, when a document accuses somebody of wrongdoing, the state must provide a live witness who can verify the truth of what is contained within that document.  Legislatures have attempted to get around this live testimony requirement in various ways.  Yes, this issue is closely related to your Sixth Amendment right to confront an accuser, but the Sixth Amendment doesn’t apply to VOP hearings.  (Nonetheless, you may want to check out my articles Lab Reports Suck, and Surrogate Testimony).  Putting aside for the moment any issues regarding confrontation, truth seeking is still troublesome in violation of probation hearings because a certain amount of hearsay is tolerated.  This tolerated hearsay, however, is constrained by the rule that this “hearsay must be corroborated by non-hearsay.” J.F. v. State, 889 So. 2d 130, 131-32 (Fla. 4th DCA 2004).

Typically, our court system does not permit testimony regarding what someone else said, as this hearsay evidence is deemed weak because it cannot be cross-examined.  For example, if I want to show that Steve tested positive for cannabis, I cannot testify that “Frank told me that Steve tested positive for cannabis”.  In the same fashion, I cannot testify that “I read a lab report that indicated cannabis was in Steve’s urine”.  That too is hearsay.  And, if the lab report is subsumed into the urine test itself, I cannot testify that “I read the test strip which I dipped in Steve’s urine, and the test strip indicated the color blue, and I read on the test kit that this color indicates Steve’s urine contained cannabis”.  Again, all of this used to be hearsay, and still is in most of Florida.  Unfortunately, the Fifth District Court of Appeals has decided to stand in direct conflict with every other district court in Florida by permitting this sort of testimony.  See Carter v. State, 82 So. 3d 995 (Fla. 1st DCA 2011), or Queior v. State, 157 So. 3d 370 (Fla. 2nd DCA 2015), or Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989). Continue Reading

“Believe none of what you hear, and half of what you see.” Benjamin Franklin (I think)IMG_1609

Unfortunately, violations of probation are fairly easy to prove, but there are a few rules that must be followed.  First and foremost, a violation cannot be based solely upon hearsay.  There are entire books written on the concept of hearsay, of which the first chapter would bore you to tears.  At the risk of losing you on such details, let me just say that hearsay involves a person quoting someone who is not present in court.  So, you can’t convict someone of violating probation by telling the judge that “Someone told me that the probationer did something”.  As basic as this may seem, you may be surprised to find that judges, probation officers, and prosecutors do not understand this age old concept.  To prove this to you, we’re going to take a look at the recent case of Mullins v. State, 2015 Fla. App. LEXIS 13553 (Fla. 2nd DCA Sept. 11, 2015).

Mr. Mullins was found guilty of violating his probation in two ways: (1) he failed to obtain the consent of his probation officer before changing his residence, and (2) he gave false information to his probation officer regarding his actual residence.  Yes, this is two violations for the price of one relocation.  Mullins’ violation began as so many others do–with a probation officer’s surprise home visit.  (Yes, you were thinking a positive drug test, and that’s probably first on the list, with surprise visits running a distant second place) Continue Reading

IMG_1386Everyone hates a know-it-all.  Through some force of nature beyond explanation, know-it-alls are attracted to the probation and parole profession.  I have no hard evidence of this, just hear me now and believe me later.  What you’re about to read involves a probation officer making three separate violation accusations, all of which turn out to be bogus.  It happens all the time, and your taxpayer dollars are being wasted.  You could interpret such poor probation performance in two ways.  First, some would say that these probation officers actually know the law, but out of spite, choose to violate citizens just to send them to jail.  But I think it may also be true that probation officers simply don’t know the law.  So, whether probation officers violate out of pure spite, or out of ignorance, is a discussion for another day.  For now, let’s delve into the recent case of Messineo v. State.  2105 Fla.App. LEXIS 13904 (Fla. 5th DCA Sept. 18, 2015).

Ms. Messineo pled to resisting an officer with violence and battery on a law enforcement officer (these go hand-in-hand, as you know).  She violated her probation several times, but each time she was reinstated.  For the violation we’re dealing with, her probation officer alleged that she failed to complete 40 hours of community service, failed to undergo a psychological evaluation, and possessed a prohibited weapon—a knife.

First up, Ms. Messineo was arrested on a new charge of possessing a concealed weapon, a pocketknife with a two inch blade.  She was stopped for a traffic violation, and permitted the officer to search her purse.  When the officer found the knife,  she told the officer that she often walks alone at night and needs the pocketknife for protection.  Is it legal for her to possess a two inch blade, even though probation prohibited her from carrying any sort of weapon while on probation?  Well, that depends upon the definition of a “weapon”. Let’s review some basic Florida law here.  What does Florida law say about pocketknifes?  And, is any of this so complicated that a probation officer couldn’t have figured it out?   Continue Reading