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Articles Posted in VOP / Violation of Probation

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

Florida has lots of folks on probation.  For the fiscal year 2013-2014, the Department of Corrections supervised 143,809 citizens.  Our success rate was 56.4%, and it costs the state $1,825/year to supervise these 143,809 people.   Florida only recouped $72 million on that $262.4 million supervision expense.  Yes, crime pays.  That being said, probation is a far better deal for we taxpayers than incarceration—those numbers are scary (a topic for another day).

Many of Florida’s probationers are sex offenders.  To qualify for sex offender probation, you need do nothing more than look at naked 16 year olds on your computer.  Sex offenders have far more conditions than standard probationers, and by standard probationers, I mean the ones that may have shot somebody, stabbed someone, or robbed someone at gunpoint.  Yes, looking at naked teenagers on your computer is a higher level of supervision than violent crimes (unless, of course, the violent crime is sexual in nature).  A sex offender must have a curfew, must not live within 1,000 feet of a school, day care, park, playground.  A sex offender must undergo a polygraph examination annually to determine if they are re-offending.  Also, a sex offender must keep a driving log, and cannot drive alone without his probation officer’s approval.

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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.
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question.jpgAfter 20+ years of defending criminal cases in Orlando, some questions are more popular than others. Simple, basic questions like: what’s going to happen to me? Oddly enough, this question can be more difficult to answer on a violation of probation than a new charge (sometimes). The reason is, judge’s have far more discretion on VOP’s than they do on the case initially (but, not as much as they think, as you’ll discover by reading below). VOP sentences are probably, statewide, the most unpredictable type of sentence out there. Within the same courthouse, on the same violation, you can have one defendant go to prison, the other client gets an admonishment (reinstated). As Timothy B. Schmit sang, “I can’t tell you why”. But, I can tell you more information once I know the judge assigned. Obviously, you want a lawyer that knows the judge your VOP case (yes, I’m that guy, if you’re in Central Florida). Now, let’s delve into the basics of a VOP, then point out an extremely important detail–often overlooked by most judges.

Judges have three options once they’ve found you guilty of violating your probation. First, they may revoke probation. When the court revokes probation, a sort of Back to the Future moment unfolds, and the judge can impose any sentence that was available initially. Generally, this is the only way a judge can impose a jail or prison on a violation of probation. Quite frankly, with some judges, a revocation usually means jail or prison. But, there’s a second option available to the court. Second, if a person is found to be in violation, the court may modify the probation. Modifications keep the person out of prison, but add conditions not found in the original probationary term. Typically, the probation is modified by adding community service hours, adding more years of supervision, or adding some sort of drug treatment (if the charge or violation relates to such).

The third option is that the court may continue probation. In my over twenty years of handling violations of probation, I have heard a few fair minded judges state “I find the Defendant in violation of his probation, and I am ordering him to continue his probationary term, no further sanctions.” Always a pleasure to hear that.

Now, for those of you really into the law on this subject–I want to blow your mind, everyone will be bored to tears, sorry. In a footnote to a recent case, the Second District Court of Appeals said the following (this is my favorite footnote of recent memory):

Because a trial court has discretion to revoke, modify, or continue probation, it seems possible that a factual scenario could arise in which revocation could be an abuse of discretion even where competent substantial evidence supports a finding that the violation was willful and substantial. However, we find no cases so holding. Savage v. State, 120 So. 3d 619 (Fla. 2nd DCA 2013), footnote 1.

Wow. Let’s break that down, because I can’t believe my own eyes.
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police car.jpg 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.
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urine test.jpgWords are important, right? And, everybody thinks they have the right to free speech, but that’s not so inside the confines of a court room. For criminal cases, what can be “said” is limited to what the witness actually knows. Typically, a witness is not permitted to talk about things of which they do not have personal knowledge. For example, a cop cannot tell a jury that a pill found in the defendant’s pocket is Hydrocodone, even though the pill is inscribed with “Watson 853”, and the officer looked up the writings on the pill at to discover that a “Watson 853” is 10mg Hydrocodone and 325mg of tylonol. You see, the officer has no personal knowledge of what the pill is, he is only testifying to what he read from a website. That’s hearsay, and it cannot be admitted into evidence.

Unfortunately, the hearsay rule is somewhat lax in violation of probation hearings. In a violation of probation hearing, hearsay is admissible–and should still be objected to–but hearsay cannot be the sole basis of the violation. [practice tip: It’s kind of weird, if you don’t object to hearsay in a violation hearing, it’s as though the evidence is not even hearsay. But, if you do object, it is acknowledged as hearsay but admitted anyway for a limited purpose] Now, lab results are almost always hearsay, so how does the government prove that a urine sample tested positive? Can the probation officer testify to this? Let’s take a look at how this plays out in court.

The case is Wagle v. State, 951 So.2d 114 (Fla. 5th DCA 2007). Wagle was convicted of violating his community control for two reasons, the second reason being that he failed a drug test. He was sentenced to five years department of corrections. Here’s how the “positive drug test” went down. His probation officer conducted a field test on Wagle’s urine, and the test was positive for cocaine and barbiturates. Fortunately, Wagle denied using any illegal drugs after being questioned (the mere admission to using drugs can get you violated, even if the drug tests are suspect. Don’t admit! Don’t lie, but don’t admit, does that make sense? Good.). So, based upon this denial, the probation officer decided to run a second drug test on the urine. This time, the test results were negative, no dirty urine this time. Boy, these tests are real accurate, aren’t they? Real “scientific”. Anyway, after getting conflicting results, the probation officer decides to send the urine to the lab for further testing. The laboratory report came back as follows: “Specimen Drug Status: NEGATIVE: Specimen Validity Status: DILUTE.” For all those out there unaware, it is a violation of probation to dilute urine while on probation. But, how can they ever prove someone intentionally diluted their urine?
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chart board.jpgWay back in the day, I had the pleasure of practicing law before the Honorable Judge Richard Conrad in Orange County. This was in the early nineties, in my days at Joe DuRocher’s public defender’s office. An assignment to Conrad was not an easy one, but everyone who truly knew Judge Conrad loved him. Myself included. Anyway, a plea in front of Judge Conrad was so fast, you might miss it if you turned away for a second. Basically, it went something like this:

“Sir, is this your signature on this plea form? Did you read it and understand it? Good, your sentence is XYZ. Next case…”.

Bam, that fast. He could do 20 pleas in 15 minutes, no kidding. Of course, we were done with court everyday by 10:45, which gave us more time to work on defending our clients. No afternoon court. There was a certain synergy in Conrad’s division brought about by the speed at which he ran his courtroom, thus returning prosecutors and defense attorneys back to their desks for the rest of the day to work, rather than waiting around in court. Yea, the good old days.

So today, we’re going to discuss what can happen on a “quick plea”. With all the violations of probation (vop) out there, it’s important to address what happens procedurally. First off, every probationer who has been violated has a right to written notice of his violation. Often, this is called an “affidavit of violation of probation”, and it must include the conditions of probation alleged to have been violated. Second, every probationer has a right to an attorney. And, the probationer should be told of this right. So, let’s take a look at what happens when two basic vop procedures are violated.

In the recent case of Speckhardt v. State, the defendant pled to two years probation on burglary and grand theft charges. 110 So.3d 85 (Fla. 2nd DCA 2013). Just after the halfway point of his two year probation term, Speckhardt was arrested on a new charge of possession of marijuana. [CRIMINAL DEFENSE PRACTICE TIP: I don’t understand why he didn’t apply for an early termination of probation once half of the probationary period was completed. This is what happens when probation is not terminated early….]
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friends.jpgCan people really read minds? Do paranormal abilities exist within human nature? Believe it or not, these questions tie into a recent Orlando violation of probation (VOP) case. Yea, it’s kind of a stretch, but bear with me, I’ll get around to it.

Before we dive in, it will be helpful to sum up the standard conditions of probation: (1) do what probation tells you to do, (2) stay out of trouble, (3) stay away from people who are in trouble. Easy enough, right? The same stuff your mom told you as a child, only your mom won’t throw you in jail with no bond should you violate her conditions. Today’s glimpse into the inner workings of Florida’s criminal courts involves the standard condition of probation which states that “You will not associate with any person engaged in criminal activity”.

Let’s take a look at the violation of probation filed in Clayton v. State, 100 So.3d 725 (Fla. 5th DCA 2012). Clayton was on probation for robbery with a firearm. So, how do you get probation on such a serious charge? Well, you start with prison time, and back it up with probation. [Criminal Defense Attorney Practice Note] don’t follow a prison sentence with probation, unless the discount up front is too good to pass up. Anyway.

Clayton’s violation comes by way of a new possession of marijuana charge, and an allegation of hanging out with the wrong crowd. Clayton’s probation conditions mandate that he “not associate with any person engaged in criminal activity”. The problem is, Clayton is not a mind reader. Clayton does not possess paranormal abilities which would permit him to determine whether or not the people he associates with are engaged in criminal activity. Bernie Madoff hung out all the time with all sorts of people. For those on probation, that would have been a violation, right? After all, Madoff is one of the biggest criminals of our time, so he should have caused an avalanche of probation violations for those probationers caught hanging with him. And, that’s sort of what happened to Clayton. Sort of.
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