Understanding Violations of Probation Hearings
This content discusses various aspects related to violations of probation, including ways to address issues that arise in violation of probation hearings, changes in probation conditions without a violation of probation (VOP), loss of jurisdiction implications, credit for jail time served as a condition of probation, and jurisdiction over terms that have not yet begun. It also covers the concept of tolling of the probation term and the filing of affidavits after the expiration of the original term to retain jurisdiction in cases of absconding defendants.
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Presentation Transcript
Violations of Probation By David A. Demers
Objective Discuss ways to properly address issues which arise in violation of probation hearings.
Changes In Probation Without A VOP Can modify condition down at any time. Cannot modify up unless def is found guilty of violation or condition is illegal. Can terminate early at any time. Cannot extend probation unless the defendant is found guilty of a violation. Even if defendant agrees. Lippman v. State, 633 So.2d 1061 (Fla. 1994); Clark v. State, 579 So.2d 109 (Fla. 1991).
Loss of Jurisdiction Action to invoke jurisdiction must be taken before expiration of term. Do not count any part of the term that is properly tolled. If action is not taken, jurisdiction is lost and the VOP must be dismissed.
Credit for Jail Time Served as a condition of probation Defendant must be given credit against the entire term of probation for any jail served as a condition of probation. When that was done in this case term of probation expired before filing of subsequent VOP and court loss jurisdiction. Smith v. State, 348 So.3d 1208 (Fla. 5th DCA 2022)
Jurisdiction Over Terms That Have not Yet Begun Court has power to revoke after the probation order is entered, but prior to the probation period beginning. Must be based on conduct that shows probationer is unfit for probation. Does not apply to technical violations. Stafford v. State, 455 So.2d 385 (Fla. 1984); Washington v. State, 579 So.2d 400 (Fla. 5th DCA 1991)
Jurisdiction: Tolling of Term Defendant absconds and does not report his whereabouts. Must be unavailable for supervision. Jailed in another jurisdiction. Serving sentence on another charge. Statute provides for tolling.
Affidavit Filed After Expiration of Original Term Court retains jurisdiction where affidavit alleges facts showing defendant absconded. Must allege facts showing a tolling over a period of time that makes it clear that court retains jurisdiction despite expiration of original term. Canchola v. State, 255 So.3d 442 (Fla. 2d DCA 2018).
Jurisdiction: No Tolling of Term Failure to appear for intake. Failure to attend counseling sessions. Failing to file report. Failure to report. Commission of violation.
Invocation of Jurisdiction and Statutory Tolling 1. Filing of affidavit followed by issuance of warrant. Filing of warrant not required. 2. Warrantless arrest. 3. Notice to appear. Fla. Stat. 948.06(1)(f)
Criminal Report Affidavit May serve as affidavit alleging a VOP sufficient to toll a term of probation. Factual content is sufficient to fulfill this function. Technical deficiency can be cured by amendment. Tolling may be from original filing. Chadwick v. State, 118 So.3d 827 (Fla. 2d DCA 2012).
Statutory Tolling: Procedure pursuant to 948.06(2) Court retains jurisdiction over violations occurring during tolling. PO may continue to supervise. If VOP is dismissed, withdrawn or defendant is found NG he/she is entitled to credit for time served on probation during tolling. Keene v. State, 266 So.3d 1264 (Fla. 5th DCA 2019)(court erred in counting tolled period in determining jurisdiction where affidavit was dismissed).
Effect of Statutory Tolling on Sentence No tolling: Court may not impose a new term of probation that when added to previous term of probation, community control and incarceration exceeds statutory max. Tolling: Court may impose a new term of probation that when combined with amount of probation served, community control and incarceration, exceeds maximum incarceration up to the amount of the tolled period.
Statutory Tolling, Effect of Failure to Extend If probation is merely continued without an extension, the tolled period of probation does not automatically extend probation as does a tolling based on absconding. Medina v. State, 320 So.2d 985 (Fla. 2d DCA 2021)
Extension without Revocation Or Modification Bailey v. State, 346 So.3d 234 (Fla. 1st DCA 2022). Term of probation was tolled pending resolution of violation. Probationer admitted violation and court announced that it was extending probation. Court lost jurisdiction in a subsequent VOP because the extension alone was insufficient to include tolled period.
Loss Jurisdiction when a period of probation or community control has been tolled, upon revocation or modification of the probation or community control, the court may impose a sanction with a term that when combined with the amount of supervision served and tolled, exceeds the term permissible pursuant to s. 775.082 for a term up to the amount of the tolled period of supervision.
Loss of Jurisdiction Upon plea court merely announced that it was extending probation but did not announce it was revoking or modifying probation. Bailey v. State, 346 So.3d 234 (Fla. 1st DCA 2022).
Section 948.04: Early Termination Or Administrative Probation Is Required Probationer completes at least half of term. Has successfully completed all other conditions of probation. Court has not found the probationer in violation of probation pursuant to a filed affidavit of violation of probation at any point during the current supervisory term.
Section 948.04: Early Termination Or Administrative Probation Is Required Early termination or conversion to administrative probation was not excluded as part of a negotiated sentence. Probationer does not qualify as a violent felony offender of special concern under s. 948.06(8)(b).
Denial of Motion for Mandatory Early Termination Not self executing (i.e requires a motion) Motion may be denied. Must make written findings that continued reporting probation is necessary to protect the community or the interests of justice.
Jurisdiction: Self-Executing Early Termination No court appearance is required. Example: Probation will early terminate at the end of 5 years. Example: Condition that when defendant moved to N.J. and called her PO from there probation would terminate. Wording of order is important!
Rights of Defendant Presence at hearing. Bail is within discretion of court. Notice and fair hearing. Plea colloquy. Search and seizure rights. Limited privilege incrimination. Right to counsel or self-representation. Discovery. Double Jeopardy. against self-
Notice, Fair Hearing & Presence Written notice. Disclosure of the evidence. Right to be heard in person. Right to evidence. Right to present closing argument. A neutral hearing body. A written statement as to the evidence relied on and reasons for revoking. Right to be present at resentencing where court has discretion. present testimony and
Departure from Affidavit Even where there is evidence of another violation, it is improper to violate for matters not alleged in the affidavit. Grady v. State, 264 So.3d 363 (Fla. 2d DCA 2019). It is fundamental error to violate for a charge not alleged in the affidavit. Kimmons v. State, 267 So.3d 1082 (Fla. 1st DCA 2019). But if the defendant has notice through other means, the defect in the affidavit does not rise to the level of a denial of due process. Smith v. State, 268 So.3d 831(Fla. 1st DCA 2019). Only applies where defendant is mislead and prejudiced in his/her defense.
Continuance: Error In Denying Defendant s Request Only a month had passed since arrest. Only one court appearance five days after arrest. No finding that motion was dilatory. Record showed no injustice or prejudice. Hill v. State, 157 So.3d 481 (Fla. 2d DCA 2015).
Continuance: Error In Denying Defense Motion Counsel had only recently been assigned to the case and was not afforded sufficient time to prepare or investigate. Unable to speak with the defendant about his defenses or other witnesses. Defendant did not play any role in reducing the preparation time. A great likelihood of prejudice by the denial of the continuance. Boffo v. State, 272 So.3d 876 (Fla. 5thDCA 2019).
Bail Bail is discretionary unless it falls into category of various violent crimes. Can t refuse to exercise discretion. 903.0351(1)(b) provides for revocation of bond on VOP for arrest on certain qualifying offenses. Failure to require P/C for the arrest or to provide for an evidentiary hearing does not make the statute invalid. State v. Lawrence, 219 So.3d 941 (Fla. 4th DCA 2017).
Bail Sex Offender Ruling denying reconsideration of bail for a registered sex offender without first making the requisite finding under section 948.06(4), Florida Statutes (2019), that his release would not pose a danger to the public departed from essential requirements of law. State v. Patterson, 325 So.3d 142 (Fla. 5th DCA 2020)
Role of Court Neutral fact finder Can t ask questions to establish elements. Can t solicit or introduce evidence. Can t proceed on new charge that the State agreed not to pursue. May ask questions to make ambiguous testimony clear. May under certain witnesses. May ask questions to determine whether to accept plea. circumstances call
Plea Colloquy Court need not comply with Rule 3.172. But defendant should be advised of: 1. the violation charges. 2. consequences of a guilty plea. 3. the right to counsel, to appointed counsel, and to confer with counsel. 4. the right to a final hearing. 5. probationer will have the opportunity to be fully heard in person or by counsel. Colley v. State, 300 So.3d 1290 (Fla. 1stDCA 2020).
Waiver of Issue of Incompetency on Plea Court previously determined that there were reasonable grounds to believe defendant was incompetent. Accepted plea w/o independent determination of competency. Defendant clearly waived issue. Acceptance was fundamental error! Sheheane v. State, 228 So.3d 1178 (Fla. 1st DCA 2017).
Self-Representation Must do a Faretta inquiry before probationer is required to respond in any matter. Failing to inquire whether a probationer has knowingly and intelligently waived the right to counsel constitutes fundamental error requiring reversal. White v. State, 336 So.3d 427 (Fla. 2d DCA 2022).
Search & Seizure: Law Enforcement Submission to search was made a condition of probation. Officer need only have reasonable suspicion to do an investigatory search of probationer s residence. No distinction between searches for a probationary purpose and searches for an investigatory purpose. United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed.2d 497 (2001).
Search & Seizure: PO A warrantless search of a probationer s home by his PO is reasonable. Not dependent on express search condition or reasonable suspicion. Totality of circumstances test is unnecessary. Evidence secured by PO can only be used in the probation proceeding. Harrell v. State, 162 So.3d 1128 (Fla. 4th DCA 2015).
Suspicionless Searches of Probationer by Non-Probation Officers Deputy had no reasonable suspicion for search of probationer s motel room. PO may conduct a warrantless and suspicionless search of a probationer's person or residence. Other officers have no such authority unless it is made a condition of probation. Hanania v. State, 264 So.3d 317 (Fla. 2d DCA 2019).
Validity of Condition Authorizing Search condition of probation authoriz[ing] random, warrantless searches and seizures by any law enforcement officer, without reasonable suspicion of criminal conduct, is unconstitutional Precluded by Grubbs v. State, 373 So. 2d 905, 910 (Fla. 1979). Bowman v. State, 335 So.3d 135 (Fla. 4th DCA 2022). See also Thompson v. State, 342 So.3d 841 (Fla. 2d DCA 2022)
Search Warrants Information secured by PO in search of probationer s residents could be used to secure a search warrant. That could be basis for new charge. Upon discovering gun, PO stopped search and advised detective who secured warrant. Ramos v. State, 344 So.3d 526 (Fla. 2d DCA 2022)
Search Warrants PO founds suspected drugs and paraphernalia. Stopped search & search warrant was secured. Drugs discovered in that warrant search could be used in new prosecution. State v. Green, 349 So.3d 503 (Fla. 1st DCA 2022)
Search of Probationers Cell Phone Data Totality of the circumstances and balancing The suspicionless search of cell phone data was valid. Conditions did not expressly authorize a search of cell phone data. Probationer was a sex offender, his underlying offenses were for sexual abuse of a minor Results could only be used in VOP. State v. Phillips, 266 So.3d 873 (Fla. 5th DCA 2019).
Search of Probationers Cell Phone Did not search cell phone data. PO looked at the phone logs, photographs, and the drone application. State s interest outweighed privacy interests. Def behavior important in determining the reasonableness of the search. Facts supported conclusion that probationer would use technology to stalk. Parker v. State, 313 So.3d 737 (Fla. 2d DCA 2020).
Privilege Against Self-Incrimination Applies in VOP hearings only to conduct and circumstances concerning criminal offenses, that the State will prosecute. As to non-criminal matters, defendant may be required to testify. As to non-criminal matters, court may infer guilt from defendant s silence. Cassamassima v. State, 657 So. 2d 906 (Fla. 5th DCA 1995)(en banc) A prior admission to a technical violation may not be used subsequent proceedings. as evidence in
Time to Consult Mere insufficient. Must permit time to consult before entering plea or proceeding with hearing. 10 minutes is insufficient. Time was adequate where counsel had sufficient knowledge of matters relating to entry of admission; defense didn t ask for more time. appointment of counsel is
Rules on proof and evidence Preponderance of the evidence. Hearsay is admissible, but unless it falls within an exception, it cannot be the sole basis for revocation. Recent example: Delopa v. State, 251 So.3d 934 (Fla. 4th DCA 2018)(changing residence based solely on testimony of PO that she was told defendant had moved). Hearsay falling within an exception may be sufficient. Hearsay along with nonhearsay may be sufficient.
Hearsay Combined With Personal Observation Battery cases: victim s out of court statements combined with officers observations. Split of authority as to whether the observations had to independently meet burden. Supreme Court resolved split: hearsay and personal observations may be sufficient. Russell v. State, 982 So.2d 642 (Fla. 2008).
Three Factors Court Must Consider 1. Credibility of the particular witnesses. 2. Reliability of the available evidence. 3. Totality of the evidence under the circumstances in each individual case.
Sufficiency of proof Must prove the defendant had notice. Must prove a willful violation: were there reasonable efforts? Must prove a substantial violation: real, true, important, essential. Clark v. State, 307 So. So.3d 24 (Fla. 4thDCA 2020). Must be court imposed condition.
