If 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) First, it would probably help to explain what a “technical” violation of probation is. If you violate probation by failing to pay restitution, or cost of supervision fees (for example), such failures to pay are considered technical violations. On the other side of this coin, if the probationer is arrested for committing a new crime, that new arrest would be considered a “substantive” violation of probation.
There’s lots of talk of speedy trial rights when a citizen is initially arrested, but violations of probation do not have time restrictions, unless you’re dealing with a technical violation. To understand how this works, let’s examine Lewin v. State, 192 So. 3d 91 (Fla. 4th DCA 2016). Lewin violated his probation in three ways: (1) he failed to make restitution payments, (2) he failed to pay for drug testing, and (3) he failed to pay supervision costs. The court imposed a 5 year prison sentence for this violation. Lewin appealed, claiming the court had no right to sentence him on a probationary term that had already expired.
A violation of probation case always begins with some probation officer asking a judge to issue a warrant for the arrest of the probationer. If the allegation involves the commission of a new crime, the signing of the VOP warrant will pause, or toll, the probationary term. For example, let’s say you have one month left on probation, and commit a new crime. Your probation officer will have a VOP warrant signed, and your final month of probation is put on pause (this tolling based upon a new crime is based on Florida Statute 901.02, relating back to Florida Statute 948.06(1)(f), all of which would bore you to tears, but these statutes are discussed in Williams v. State, 202 So. 3d 917 (Fla. 4th DCA 2016)).
So, we know that the commission of a new crime will pause your probation termination date, but the same is not true of technical violations. Probation just keeps rolling on technical violations. And, that’s what happened in Lewin, he was arrested on the violation warrant after his termination date. By the time he went to court for the VOP, his termination date had passed. As such, the appellate court overturned his five year prison VOP sentence because the lower court lacked jurisdiction to resolve the VOP. Lucky Lewin.
Yes, technical VOPs are a race against time, especially when the violation warrants are filed late in the game. When a violation of probation affidavit only alleges technical violations (like the one in Lewin), there’s a chance that the court will not be able to address the case before the expiration of the probationary period. Motion to dismiss granted.
Now, there is one notable (obvious?) exception to this technical violation rule. If a probationer absconds from supervision, and his “current whereabouts are unknown” as they say, then the probation is tolled. (See Williams, above)
UPDATE: Normally, I don’t dig into old articles and update the law–that would be a full time job. And, that’s why you call someone, don’t just read stuff. So, here’s my depressing update: the Florida legislature caught wind of this “technicality” and closed this loophole by amending Florida Statute 948.06(1)(f), effective July 1, 2017.