Articles Posted in VOP / Violation of Probation

beach chair.jpgWhen a person is arrested in Orlando and spends five (5) days in jail before bonding out, we call that “five days credit time served”. But what happens when the same person is arrested on two cases, and spends that same five days in jail? If the system is functioning correctly, the citizen should be given five days credit time served on each case. Unfortunately, things don’t always go quite so smoothly.

Take the case of Milligan v. State, 88 So.3d 1031 (Fla.App. 2nd DCA 2012). Steven Milligan was charged with violating his probation (VOP) on two separate felony charges by being arrested on a new allegation of burglary of a conveyance. Both of Milligan’s probation periods were running at the same time (concurrent). (It’s a pretty common for citizens to be on probation for multiple charges because ‘global plea offers’ often package up various charges into one big probation sentence)

Now, we all know what typically happens on a felony VOP, the probationer is served with a no bond warrant for violation. “No bond” simply means that the probationer must sit in jail until the violation is resolved, he cannot bond out. And to make matters worse, here’s where government incompetence comes into play–Milligan was only arrested on one of the violation cases (some would say this is a malicious tactic of various jail systems to rob defendants of their credit time served, and that’s possible too, more on this later).

Milligan’s first VOP arrest was on July 25th. Logic would dictate that Milligan would be arrested on both probation violations, as he was serving two probation sentences at the same time. But that’s not what happen. So, Milligan was sitting in jail, starting on July 25th, on only one violation–not both. Then, on October 16th, he was served with the second violation of probation warrant.
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book heart.jpgHere in Orlando, violation of probation (VOP) cases can have serious consequences. Duh. To make matters worse, some judges lack the intellect required to discern the nuances of Florida law, and instead they simply believe everything a probation officer says. By doing so, these judges become a rubber stamp for probation officers and prosecutors (why even bother becoming a judge?).

CONFESSION: I’m not a big fan of Federal law, but the Feds have it right when it comes to probation violations, because Federal law limits the punishment which may be inflicted on a vop case. The same constraints are not found under Florida law. Under Federal law, many violations carry just a few months in jail as punishment. But on a state case, that same violation can send a citizen straight to prison.

In Brown v. State, 86 So.3d 1225 (Fla.App. 2nd DCA 2012), Brown was found guilty of violating his probation due to a curfew violation. Now, curfew violations are a tricky subject. Florida law provides very little guidance when it comes to how “late” a probationer can be. Can you be one hour late? Two hours late? 20 minutes late? Well, that depends. Even though Florida law does not quantify how late is ‘too late’, our laws do provide that a judge may only sign off on a violation of probation warrant if the violation is “substantial”. So, how much lateness is considered “substantial?” At this point, theoretically, a VOP judge should be able to use his or her God given intellect to decide whether or not a no bond warrant should be issued. Here’s what happened to Mr. Brown.
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prison.jpgBeing on probation in Orlando is like having a dark cloud follow you wherever you go. Of course, I haven’t personally seen this dark cloud, and there’s no scientific evidence to support my theory — but after nineteen years of defending VOP cases, it seems that citizens who are on probation attract more trouble than those who are not. (sure, you statistics folks are going to easily explain away how this ‘dark cloud’ is nothing more than a foregone conclusion given the population set we’re dealing with–but why ruin my touchy feeling conclusions with hard math?).

Given this dark cloud hovering above probationers, it’s fairly common to see these folks re-arrested on new charges. Upon re-arrest, here’s a pretty common observation: “I’m screwed, I’m on probation and I’ve been re-arrested”. Well, not so fast Mr. Negativity. The truth is, a new arrest will lead to the filing of a violation of probation warrant based upon the new arrest, and that’s no fun. However, the good news is that this new arrest does not necessarily mean that the government has enough evidence to find you guilty of violating your probation. That’s because a new arrest is not really the reason for the issuance of the violation warrant–the real reason is the allegation that you’ve broken the law. Thus, when the state simply attempts to prove that you’ve been “re-arrested”–you will win the violation of probation hearing. Don’t believe me? Here’s one example.

The case is Person v. State, 83 So.3d 940 (Fla. 3rd DCA 2012). Person was found guilty of violating his probation and sentenced to the maximum of thirty years prison. One of the violations was a new allegation of aggravated battery. Basically, this violation claims that Person “failed to live and remain at liberty without violating any law”. The court heard testimony that indicated there was, indeed, probable cause for his aggravated battery arrest. As such, the court found him guilty of violating that condition.
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earth_black_edition.jpgWe all presume that the title of “judge” requires the exercise of some judgment. But when you consider the fact that our legislature requires judges to impose minimum mandatory sentences–on everything ranging from misdemeanor DUI, misdemeanor domestic violence battery, all the way up to trafficking cases–there’s often time little room for a judge to maneuver in one of the most important decisions a judge can make. Sentencing.

We taxpayers pay good money to our judges so that they can sort out real life human dramas. For example, what can a judge do with a defendant that (1) has a mental problem that requires special treatment, yet (2) the legislature’s score sheet “requires” that the judge impose a minimum mandatory prison sentence? The good news is that there is a tiny loophole in the sentencing law found in subsection 921.0026(2)(d). This subsection permits the judge to go below a mandatory sentence if the defendant requires specialized treatment for a mental disorder. Sounds easy, right? Not. In reality, this subsection is rarely used, because the burden is on the defendant to show that the needed treatment is not available at the Department of Corrections. Even though the subsection does not spell out such a requirement, our courts have interpreted the statute as requiring that “the defendant must also establish…that the Department of Corrections cannot provide the required ‘specialized treatment’.” Yikes. How do you prove this negative?

There is light at the end of this tunnel. The light comes from the case of State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012). Harry Chubbuck violated his probation (vop) by testing positive for cocaine, and the state requested that the court impose a minimum sentence of 37.65 months in prison. You heard me. 37+ months for testing positive for cocaine on a VOP. Harry’s criminal defense attorney argued that the court should give him only the 97 or 98 days time already served in jail, because Harry is very sick.
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hand_on_a_bible.jpgWe’re continuing our series on Violations of Probation (VOP). It’s in the air here in Orlando, so why fight it? The focus today is on the money making mandatory counseling sessions that come along with some probation sentences.

“Any recommended treatment or counseling” is a common phrase used by judges, and it translates: “you’re about to pay a boat load of money, and time, to some counseling program that has no real incentive to release you”. Imagine being in a business where you can dictate how long a citizen must continue to make monthly payments to your company–or they go to jail! Sounds like the business model of Big Pharmaceutical companies that would rather have patients on a monthly pill popping program than find a cure.

Don’t get me wrong. Many defendants need counseling. Many human beings need counseling. But, every single DUI conviction comes with alcohol treatment and counseling–even if no alcohol was found in the person’s system! Does that even make sense? No, but it makes money. Yes, we need to help the defendants that truly have an addiction, and find a way to weed out those who don’t.

For example, every person convicted of domestic violence battery must attend and complete a batterers intervention program. No problems there, right? Wrong. This program requires the ‘participant’ to admit to having battered another human being. Participation requires an admission of guilt. That’s when a probationer is faced with the decision to simply lie and complete the treatment–or tell the truth and be terminated from the treatment. Of course, termination from treatment will then violate probation, and a probation violation carries an arrest plus jail or prison time. So, what do you do?

Let’s rewind to see what gets a person into a treatment program in the first place. For many, a crime was committed and they’re paying the price. However, not everyone who enters a plea is guilty. Many folks chose to enter a no contest plea rather than risk losing everything after a trial. For those of you who don’t know, the increase in mandatory minimum sentences (especially for trafficking in oxycodone cases) has made it more common for innocent defendants to enter a plea rather than risk mandatory prison time over $50 worth of pills.

The problem is, that the “treatment” program that comes along with a guilty plea also requires an admission of guilt. So, if a defendant doesn’t want to risk mandatory jail on a domestic battery charge, a guilty plea will require counseling. But, the batterers intervention counseling program requires an admission that, yes, you have beaten your wife/girlfriend/etc. if you tell the truth–that you are innocent and simply entered a plea so as to not lose your job/home/sanity–they’ll terminate the treatment and that termination will send you to jail on a violation of probation!? A classic Catch 22. It happens more often than you think. Let’s take a look at a few cases in which the defendant’s stood up to the treatment programs, told the truth, and were sent to jail.
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dont_be_late.jpgIt’s “Violation of Probation Month” here at the law office, and unfortunately, VOP’s are in the air, or so it seems. Of course, being on probation isn’t fun, as many of Orlando’s probationers will testify. And just in case life isn’t busy enough these days, probation adds significant extra appointments, rules, and regulations to the everyday life of a probationer. Sometimes, a probationer forgets one of these appointments and ends up in jail on a violation of probation accusation. What now?

One of the most basic rules of VOP defense involves the following question: did the probationer “willfully and substantially” violate his probation? Let’s take a look at an all too common scenario as found in the real life example of Perez v. State, 884 So.2d 306 (Fla. 2nd DCA 2004). Perez was found guilty of violating his probation, at which time the judge extended his probation one year. Perez then violated this extra one year of probation and received a seven year prison sentence. The line of attack here was simple: the appellate attorney challenged the validity of the one year extension of probation. Here’s a breakdown of the battle.

The initial violation was based upon the fact that Perez failed to present himself for random drug testing at the times his probation officer requested, between the hours of 4pm and 5pm. Perez showed up at 5:20pm, and probation told him to come back the next day. Perez was able to come into the office to be tested the next day, and did so (after 19 years of criminal defense work, I find this to be a fairly common basis for a VOP. An officer tells a probationer to jump–they better jump, or else. But, that’s not really the law). The trial court found this failure to appear to be enough to violate Perez, and as punishment extended his probation one year.
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gavel.jpgHere in Orlando, I’m seeing a surge of violation of probation (VOP) activity, and I can’t explain why–much in the way that some UFO hunters find a rash of sitings in various parts of the country that go unexplained, chalk this one up to that phenomenon as well. So, even without knowing the reasons for this increased level of activity, let’s address a few common VOP issues.

One positive thing to keep in mind is that, most of the time, it’s possible to reinstate probation after a violation. But sometimes, judges are mistaken as to what their sentencing options are after finding a defendant guilty of violating probation. A real life example of this can be found in the case of Griffin v. State, 783 So.2d 337 (Fla. 5th DCA 2001). Griffin was given a nine year prison sentence on his violation of probation, with the underlying offense being burglary of a dwelling, grand theft, and possession of a firearm by a convicted felon. Griffin had already served 10 years prison on the case (including a 3 year minimum mandatory on the firearm charge).

Griffin admitted to violating his probation, but in a nice sentencing move, he called his mental health counselor to testify that he had been physically, sexually and mentally abused as a child. After all this abuse, Griffin had never been able to stick with counseling for more than four weeks at a time, but both he and his counselor explained that he was now ready to make a change (Griffin had already set a personal record of six weeks counseling as of the sentencing date). Griffin scored more prison time, and the VOP sentencing judge sympathized, but felt that his hands were tied with no option to give any other sentence–even though Griffin’s defense attorney explained that the court may simply modify or continue Griffin’s probation! (judges don’t always listen, do they? Well, that’s why we have appellate courts…).
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prison cell.jpgThis is America, right? We have a Constitution, right?

Well, there’s lots of ‘words’ in our Constitution which, apparently, some judges haven’t taken the time to read. Bottom line, our Constitution (Federal and State, for those keeping score) bans imprisonment for debt. Even so, some Orlando probationers find themselves unable to afford the massive amounts of fees, fines, court costs, restitution, classes, surcharges, counseling, and so forth and so on. We all know what happens when a probationer cannot afford to do any of the above listed items–a violation warrant is filed by the probation officer.

On the technical side of things, we have Florida Statute section 948.06(5), which sets up the debtors prison scenario by declaring that, “In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision as provided in s. 948.09, as directed, is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so.”

See the problem here? The probationer carries the burden of proving his poverty, rather than the State. In a Violation of Probation case, it is the state that is bringing a lawsuit against the probationer for failing to pay something–so it should be the state’s burden to prove such. But, that’s not so, due to the ‘burden shifting’ found in Florida law, under section 948.06(5) (highlighted above).
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supreme court.jpgThey say a good lawyer knows the lawyer, a great lawyer knows the judge. If you simply know the law here in Orange, Seminole, or Osceola County, you’re only halfway there. An attorney must also know the judge. There are several different rules that control the behavior of criminal defense attorneys and defendants in criminal courtrooms. But sometimes, the judge’s rules cross the line. Let’s examine one such instance.

Back in 2010, Jeffrey Tishner was placed on five years probation for burglary and grand theft. Tishner violated his probation (VOP) with a new DUI arrest, and the VOP had a $10,000. Tishner v. Cameron, Sheriff, 75 So.3d 787 (Fla. 2nd DCA 2011). Tishner bonded out on the VOP, hired an attorney, and the criminal defense attorney waived his appearance at the VOP arraignment, pursuant to Florida Rule of Criminal Procedure 3.160(a). This criminal rule states that “counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived.”
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homeless.jpgMoney comes, and money goes. We all have important bills to pay. Here in Orlando, times are tough for many folks. This is especially true of those on probation. It can be hard enough to get by in life, but add to that the conditions of probation–and how much money it costs to complete these conditions–and this can spell a receipt for disaster. Let’s take a look at the train wreck now.

No probationer has it worse than the sex offender. Sex offender conditions of probation are too vast to list here, but it’s fair to say it’s not cheap. In the case of Washington v. State, 2011 WL 1760432 (Fla. 1st DCA 2011), the defendant was on probation for a sex offense, and was issued a violation of probation warrant for failing to (1) maintain his GPS monitoring device, and (2) attend sex offender counseling. Id. His defense was his inability to pay for such things. Think about it, who’s going to hire a sex offender? Thus, assuming the sex offender is not independently wealthy, money is going to be tight. In many cases, a sex offense conviction is a precursor to being homeless and penniless (but that’s a whole other story…).
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