Here 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…).
Hat’s off to the criminal defense attorney that attempted to inform this judge that there were other sentencing options available. Sure, the argument didn’t work the first time, but on appeal, the 5th District Court of Appeals overturned the prison sentence because “the trial court had the discretion to revoke, modify, or continue Griffin’s probation, contrary to its belief. Based upon the trial court’s apparent misunderstanding of the law, Griffin’s sentence is reversed and the cause remanded for resentencing.” Id at 338.
Our legislature often passes laws that hinder a judge’s ability to “do justice”. Even though the anti-murder act legislation places a few road blocks in the way of a court’s ability to craft a just sentence, section 948.06(1) of the Florida Statutes continues to provide that, basically, when a defendant is facing a violation of probation sentence, the court may modify or continue said probation–rather than simply ship the person off to the Department of Corrections. This is a powerful tool for justice. This is a powerful tool for saving taxpayers money. Probation’s success rate is somewhere in the 65-75% range (depending upon whose stats you use), so that means that 25-35% of probationers will face a violation sentence at some point. Should this happen, it’s good to know that reinstatement is an option.