Understanding Violations of Probation Hearings

 
Violations of Probation
By
David A. Demers
 
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Discuss ways to properly address issues
which arise in violation of probation
hearings.
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Can modify condition down at any time.
Can modify condition down at any time.
Cannot modify up unless def is found
Cannot modify up unless def is found
guilty of violation or condition is illegal.
guilty of violation or condition is illegal.
Can terminate early at any time.
Can terminate early at any time.
Cannot extend probation unless the
Cannot extend probation unless the
defendant is found guilty of a violation.
defendant is found guilty of a violation.
Even if defendant agrees.
Even if defendant agrees.
Lippman v. State
Lippman v. State
, 633 So.2d 1061 (Fla.
, 633 So.2d 1061 (Fla.
1994); 
1994); 
Clark v. State
Clark v. State
, 579 So.2d 109
, 579 So.2d 109
(Fla. 1991).
(Fla. 1991).
 
 
 
 
 
 
Jurisdiction
Jurisdiction
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Action to invoke jurisdiction must be taken
Action to invoke jurisdiction must be taken
before expiration of term.
before expiration of term.
Do not count any part of the term that is
Do not count any part of the term that is
properly tolled.
properly tolled.
If action is not taken, jurisdiction is
If action is not taken, jurisdiction is
lost and the VOP must be dismissed.
lost and the VOP must be dismissed.
 
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Defendant must be given credit
Defendant must be given credit
against the entire term of probation
against the entire term of probation
for any jail served as a condition of
for any jail served as a condition of
probation.
probation.
When that was done in this case term of
When that was done in this case term of
probation expired before filing of
probation expired before filing of
subsequent VOP and court loss
subsequent VOP and court loss
jurisdiction.
jurisdiction.
Smith v. State
,  348 So.3d 1208 (Fla. 5th
DCA 2022)
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Court has power to revoke 
Court has power to revoke 
after
after
 the
 the
probation order is entered, but 
probation order is entered, but 
prior
prior
 to
 to
the probation period beginning.
the probation period beginning.
Must be based on conduct that shows
Must be based on conduct that shows
probationer is 
probationer is 
unfit for probation.
unfit for probation.
Does not apply to technical
Does not apply to technical
violations.
violations.
Stafford v. State
Stafford v. State
, 455 So.2d 385 (Fla.
, 455 So.2d 385 (Fla.
1984); 
1984); 
Washington v. State,
Washington v. State,
 579 So.2d
 579 So.2d
400 (Fla. 5th DCA 1991)
400 (Fla. 5th DCA 1991)
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Defendant absconds and does not
Defendant absconds and does not
report his whereabouts.
report his whereabouts.
Must be unavailable for
Must be unavailable for
supervision.
supervision.
Jailed in another jurisdiction.
Jailed in another jurisdiction.
Serving sentence on another charge.
Serving sentence on another charge.
Statute provides for tolling.
Statute provides for tolling.
 
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Statute barring gap between the prison
Statute barring gap between the prison
and probationary portions of a sentence.
and probationary portions of a sentence.
Where a judge sentenced defendant to
Where a judge sentenced defendant to
prison followed by probation on one
prison followed by probation on one
charge (Ch1) and then later sentenced
charge (Ch1) and then later sentenced
defendant to longer prison term to run
defendant to longer prison term to run
concurrent on another charge (Ch2) 
concurrent on another charge (Ch2) 
the
the
probation on Ch1  was tolled until
probation on Ch1  was tolled until
completion of prison term on Ch2.
completion of prison term on Ch2.
State v. Fiddemon
State v. Fiddemon
, 301 So.3d 243 (Fla. 4
, 301 So.3d 243 (Fla. 4
th
th
DCA 2020).
DCA 2020).
 
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Previously defendant was required to
Previously defendant was required to
begin probation after release from prison
begin probation after release from prison
even though he was civilly committed 
even though he was civilly committed 
 no
 no
tolling during civil commitment.
tolling during civil commitment.
Section 948.012(6) was amended in
Section 948.012(6) was amended in
2014 to provide for a tolling during
2014 to provide for a tolling during
civil commitment.
civil commitment.
Brown v. State
Brown v. State
, 
, 
264 So.3d 1097 (Fla. 1st
264 So.3d 1097 (Fla. 1st
DCA 2019)
DCA 2019)
 
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Court retains jurisdiction where
Court retains jurisdiction where
affidavit alleges facts showing
affidavit alleges facts showing
defendant absconded.
defendant absconded.
Must allege facts showing a tolling over a
Must allege facts showing a tolling over a
period of time that makes it clear that
period of time that makes it clear that
court retains jurisdiction despite expiration
court retains jurisdiction despite expiration
of original term.
of original term.
Canchola v. State
, 255 So.3d 442 (Fla. 2d
DCA 2018).
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Amended affidavit alleged defendant
Amended affidavit alleged defendant
changed his address and his
changed his address and his
whereabouts were unknown.
whereabouts were unknown.
Plead prima facie case def. no longer
Plead prima facie case def. no longer
under the controlling arm of the State.
under the controlling arm of the State.
Based on proof, trial judge could conclude
Based on proof, trial judge could conclude
that defendant had absconded and
that defendant had absconded and
probation 
probation 
was tolled until defendant
was tolled until defendant
was placed back under supervision.
was placed back under supervision.
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Failure to appear for intake.
Failure to attend counseling sessions.
Failing to file report.
Failure to report.
Commission of violation.
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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)
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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).
 
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Court retains jurisdiction over violations
Court retains jurisdiction over violations
occurring during tolling.
occurring during tolling.
PO may continue to supervise.
PO may continue to supervise.
If VOP is dismissed, withdrawn or
If VOP is dismissed, withdrawn or
defendant is found NG he/she is
defendant is found NG he/she is
entitled to credit for time served
entitled to credit for time served
on probation during tolling.
on probation during tolling.
Keene v. State
Keene v. State
, 266 So.3d 1264 (Fla.
, 266 So.3d 1264 (Fla.
5th DCA 2019)(court erred in counting
5th DCA 2019)(court erred in counting
tolled period in determining jurisdiction
tolled period in determining jurisdiction
where affidavit was dismissed).
where affidavit was dismissed).
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No tolling: 
No tolling: 
Court may not impose a new
Court may not impose a new
term of probation that when added to
term of probation that when added to
previous term of probation, community
previous term of probation, community
control and incarceration exceeds
control and incarceration exceeds
statutory max.
statutory max.
Tolling: 
Tolling: 
Court may impose a new term of
Court may impose a new term of
probation that when combined with
probation that when combined with
amount of probation served, community
amount of probation served, community
control and incarceration,
control and incarceration,
 exceeds
 exceeds
maximum incarceration up to the
maximum incarceration up to the
amount of the tolled period.
amount of the tolled period.
 
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If probation is merely continued without
If probation is merely continued without
an extension, 
an extension, 
the tolled period of
the tolled period of
probation does not automatically
probation does not automatically
extend probation as does a tolling
extend probation as does a tolling
based on absconding.
based on absconding.
Medina v. State
Medina v. State
, 320 So.2d 985 (Fla. 2d
, 320 So.2d 985 (Fla. 2d
DCA 2021)
DCA 2021)
 
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Bailey v. State
Bailey v. State
, 346 So.3d 234 (Fla. 1st
, 346 So.3d 234 (Fla. 1st
DCA 2022).
DCA 2022).
Term of probation was tolled pending
Term of probation was tolled pending
resolution of violation.
resolution of violation.
Probationer admitted violation and court
Probationer admitted violation and court
announced that 
announced that 
it was extending
it was extending
probation.
probation.
Court lost jurisdiction in a subsequent VOP
Court lost jurisdiction in a subsequent VOP
because the extension alone was
because the extension alone was
insufficient to include tolled period.
insufficient to include tolled period.
 
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 “when a period of probation or
 “when a period of probation or
community control has been tolled, upon
community control has been tolled, upon
revocation or modification 
revocation or modification 
of the
of the
probation or community control, the court
probation or community control, the court
may impose a sanction with a term that
may impose a sanction with a term that
when combined with the amount of
when combined with the amount of
supervision served and tolled, exceeds the
supervision served and tolled, exceeds the
term permissible pursuant to s. 775.082
term permissible pursuant to s. 775.082
for a term up to the amount of the tolled
for a term up to the amount of the tolled
period of supervision.”
period of supervision.”
 
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Upon plea court merely announced
Upon plea court merely announced
that it was extending probation but
that it was extending probation but
did not announce it was revoking or
did not announce it was revoking or
modifying probation.
modifying probation.
Bailey v. State
Bailey v. State
, 346 So.3d 234 (Fla. 1st
, 346 So.3d 234 (Fla. 1st
DCA 2022).
DCA 2022).
 
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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.
 
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Early termination or conversion to
Early termination or conversion to
administrative probation was not
administrative probation was not
excluded as part of a negotiated
excluded as part of a negotiated
sentence.
sentence.
Probationer does not qualify as a violent
Probationer does not qualify as a violent
felony offender of special concern under s.
felony offender of special concern under s.
948.06(8)(b).
948.06(8)(b).
 
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A form of no contact, nonreporting
supervision.
A court may order administrative
probation.
DOC may transfer an offender to
administrative probation, as provided in s.
948.013.
 
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Not self executing (i.e requires a motion)
Not self executing (i.e requires a motion)
Motion may be denied.
Motion may be denied.
Must make written findings that
Must make written findings that
continued reporting probation is
continued reporting probation is
necessary to protect the community
necessary to protect the community
or the interests of justice.
or the interests of justice.
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No court appearance is required.
No court appearance is required.
Example: Probation will early terminate at
Example: Probation will early terminate at
the end of 5 years.
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!
 
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Technical violation: not a new felony,
Technical violation: not a new felony,
misdemeanor, or criminal traffic offense.
misdemeanor, or criminal traffic offense.
PO shall determine whether the person on
PO shall determine whether the person on
probation or community control is eligible
probation or community control is eligible
for the alternative sanctioning program.
for the alternative sanctioning program.
If so, PO may proceed with alternative
If so, PO may proceed with alternative
sanctioning program in lieu of filing an
sanctioning program in lieu of filing an
affidavit of violation with the court.
affidavit of violation with the court.
Alternative sanctions must be
Alternative sanctions must be
approved by court.
approved by court.
 
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PO must submit recommended sanction to
PO must submit recommended sanction to
the court with documentation reflecting
the court with documentation reflecting
the probationer's admission to the
the probationer's admission to the
technical violation and agreement with the
technical violation and agreement with the
recommended sanction.
recommended sanction.
The court may impose the
The court may impose the
recommended sanction or direct the
recommended sanction or direct the
department to submit a violation
department to submit a violation
report, affidavit, and warrant to the
report, affidavit, and warrant to the
court.
court.
 
 
 
 
 
Rights of Defendant
Rights of Defendant
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Presence at hearing.
Bail is within discretion of court.
Notice and fair hearing.
Plea colloquy.
Search and seizure rights.
Limited privilege against self-
incrimination.
Right to counsel or self-representation.
Discovery.
Double Jeopardy.
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Written notice.
Written notice.
Disclosure of the evidence.
Disclosure of the evidence.
Right to be heard in person.
Right to be heard in person.
Right to present testimony and
Right to present testimony and
evidence.
evidence.
Right to present closing argument.
Right to present closing argument.
A neutral hearing body.
A neutral hearing body.
A written statement as to the evidence
A written statement as to the evidence
relied on and reasons for revoking.
relied on and reasons for revoking.
Right to be present at resentencing
Right to be present at resentencing
where court has discretion.
where court has discretion.
 
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Even where there is evidence of another
Even where there is evidence of another
violation, it is improper to violate for matters not
violation, it is improper to violate for matters not
alleged in the affidavit. 
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
But if the defendant has notice through other
means, the defect in the affidavit does not rise
means, the defect in the affidavit does not rise
to the level of a denial of due process. 
to the level of a denial of due process. 
Smith v.
Smith v.
State
State
, 268 So.3d 831(Fla. 1st DCA 2019).
, 268 So.3d 831(Fla. 1st DCA 2019).
Only applies where defendant is mislead
Only applies where defendant is mislead
and prejudiced in his/her defense.
and prejudiced in his/her defense.
 
 
 
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Violation based on a condition not alleged in the
Violation based on a condition not alleged in the
affidavit was improper.
affidavit was improper.
VOP was improper: possession of adult obscene
VOP was improper: possession of adult obscene
material 
material 
related
related
 to the offense involved
 to the offense involved
committed against children and the evidence did
committed against children and the evidence did
not establish relationship.
not establish relationship.
Not charged with VOP by violating another
Not charged with VOP by violating another
broader condition, 
broader condition, 
was not on notice and
was not on notice and
was only prepared to defend against the
was only prepared to defend against the
narrower condition.
narrower condition.
Bryan v. State
Bryan v. State
, 293 So.3d 1086 (Fla. 2d DCA
, 293 So.3d 1086 (Fla. 2d DCA
2020).
2020).
 
Different Result Where Defendant Had
Notice
 
As in 
As in 
Bryan
Bryan
 there was a narrow and a
 there was a narrow and a
broader condition.
broader condition.
The defect in alleging a violation of the
The defect in alleging a violation of the
narrower condition was harmless error.
narrower condition was harmless error.
Defendant was on notice of the
Defendant was on notice of the
broader condition and defended
broader condition and defended
solely on the grounds that he did not
solely on the grounds that he did not
own the material.
own the material.
Quijano v. State
Quijano v. State
, 270 So.3d 549 (Fla. 2d
, 270 So.3d 549 (Fla. 2d
DCA 2019)
DCA 2019)
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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).
 
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Counsel had only recently been assigned to the
Counsel had only recently been assigned to the
case and was not afforded sufficient time to
case and was not afforded sufficient time to
prepare or investigate.
prepare or investigate.
Unable to speak with the defendant about his
Unable to speak with the defendant about his
defenses or other witnesses.
defenses or other witnesses.
Defendant did not play any role in reducing the
Defendant did not play any role in reducing the
preparation time.
preparation time.
A great likelihood of prejudice by the
A great likelihood of prejudice by the
denial of the continuance.
denial of the continuance.
Boffo v. State
Boffo v. State
, 272 So.3d 876 (Fla. 5
, 272 So.3d 876 (Fla. 5
th
th
 DCA
 DCA
2019).
2019).
C
o
n
t
i
n
u
a
n
c
e
 
E
r
r
o
r
 
i
n
 
D
e
n
y
i
n
g
 
S
t
a
t
e
s
R
e
q
u
e
s
t
 
b
e
c
a
u
s
e
 
P
O
 
A
b
s
e
n
t
 
1.
Due diligence?
2.
Substantially favorable testimony?
3.
Witness available and willing to testify?
4.
Denial caused material prejudice.
State v. Dixon
, 225 So.3d 274 (Fla. 4
th
DCA 2017)
State met all four requirements.
As to sworn officer, presumption would
have been available and willing to testify
favorably to the State.
 
B
a
i
l
 
Bail is discretionary unless it falls into
Bail is discretionary unless it falls into
category of various violent crimes.
category of various violent crimes.
Can’t refuse to exercise discretion.
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
Ruling denying reconsideration of bail for
a registered sex offender without first
a registered sex offender without first
making the requisite finding under section
making the requisite finding under section
948.06(4), Florida Statutes (2019), that
948.06(4), Florida Statutes (2019), that
his release 
his release 
would not pose a danger to
would not pose a danger to
the public
the public
 departed from essential
 departed from essential
requirements of law.
requirements of law.
State v. Patterson
State v. Patterson
, 325 So.3d 142 (Fla. 5
, 325 So.3d 142 (Fla. 5
th
th
DCA 2020)
DCA 2020)
Role of Court
 
Neutral fact finder
Can’t ask questions to establish elements.
Can’t ask questions to establish elements.
Can’t solicit or introduce evidence.
Can’t solicit or introduce evidence.
Can’t proceed on new charge that the
Can’t proceed on new charge that the
State agreed not to pursue.
State agreed not to pursue.
M
ay ask questions to make ambiguous
ay ask questions to make ambiguous
testimony clear.
testimony clear.
May under certain circumstances call
May under certain circumstances call
witnesses.
witnesses.
May ask questions to determine whether
May ask questions to determine whether
to accept plea.
to accept plea.
 
P
l
e
a
 
C
o
l
l
o
q
u
y
 
Court need not comply with Rule
Court need not comply with Rule
3.172.
3.172.
But defendant should be advised of:
But defendant should be advised of:
1.
the violation charges.
the violation charges.
2.
consequences of a guilty plea.
consequences of a guilty plea.
3.
the right to counsel, to appointed counsel,
the right to counsel, to appointed counsel,
and to confer with counsel.
and to confer with counsel.
4.
the right to a final hearing.
the right to a final hearing.
5.
probationer will have the opportunity to be
probationer will have the opportunity to be
fully heard in person or by counsel.
fully heard in person or by counsel.
Colley v. State
Colley v. State
, 300 So.3d 1290 (Fla. 1
, 300 So.3d 1290 (Fla. 1
st
st
 DCA
 DCA
2020).
2020).
W
a
i
v
e
r
 
o
f
 
I
s
s
u
e
 
o
f
 
I
n
c
o
m
p
e
t
e
n
c
y
o
n
 
P
l
e
a
 
Court previously determined that there
Court previously determined that there
were reasonable grounds to believe
were reasonable grounds to believe
defendant was incompetent.
defendant was incompetent.
Accepted plea w/o independent
Accepted plea w/o independent
determination of competency.
determination of competency.
Defendant clearly waived issue.
Defendant clearly waived issue.
Acceptance was 
Acceptance was 
fundamental error!
fundamental error!
Sheheane v. State
, 228 So.3d 1178 (Fla.
1st DCA 2017).
 
S
e
l
f
-
R
e
p
r
e
s
e
n
t
a
t
i
o
n
 
Must do a 
Must do a 
Faretta
Faretta
 inquiry before
 inquiry before
probationer is required to respond in any
probationer is required to respond in any
matter.
matter.
Failing to inquire whether a probationer
Failing to inquire whether a probationer
has knowingly and intelligently waived the
has knowingly and intelligently waived the
right to counsel constitutes 
right to counsel constitutes 
fundamental
fundamental
error
error
 requiring reversal.
 requiring reversal.
White v. State
White v. State
, 336 So.3d 427 (Fla. 2d
, 336 So.3d 427 (Fla. 2d
DCA 2022).
DCA 2022).
S
e
l
f
-
R
e
p
r
e
s
e
n
t
a
t
i
o
n
 
Do not focus on legal knowledge.
Do not focus on legal knowledge.
Focus on knowing and intelligent waiver.
Focus on knowing and intelligent waiver.
No need to renew offer of counsel where
No need to renew offer of counsel where
hearings between initial waiver and
hearings between initial waiver and
VOP hearing were not crucial.
VOP hearing were not crucial.
Must renew offer of counsel after
Must renew offer of counsel after
hearing and before sentencing.
hearing and before sentencing.
Birlkey v. State
, 220 So.3d 431 (Fla. 4th
DCA 2017). See also 
Richardson v. State
,
229 So.3d 446 (Fla. 1st DCA 2017).
S
e
a
r
c
h
 
&
 
S
e
i
z
u
r
e
:
 
L
a
w
E
n
f
o
r
c
e
m
e
n
t
 
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,
United States v. Knights,
 534 U.S. 112,
 534 U.S. 112,
122 S. Ct. 587, 151 L. Ed.2d 497
122 S. Ct. 587, 151 L. Ed.2d 497
(2001).
(2001).
S
e
a
r
c
h
 
&
 
S
e
i
z
u
r
e
:
 
P
O
 
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).
 
 
S
u
s
p
i
c
i
o
n
l
e
s
s
 
S
e
a
r
c
h
e
s
 
o
f
 
P
r
o
b
a
t
i
o
n
e
r
b
y
 
N
o
n
-
P
r
o
b
a
t
i
o
n
 
O
f
f
i
c
e
r
s
 
Deputy had no reasonable suspicion for
Deputy had no reasonable suspicion for
search of probationer’s motel room.
search of probationer’s motel room.
PO may conduct a 
PO may conduct a 
warrantless and
warrantless and
suspicionless
suspicionless
 search of a probationer's
 search of a probationer's
person or residence.
person or residence.
Other officers have no such authority
Other officers have no such authority
unless it is made a condition of
unless it is made a condition of
probation.
probation.
Hanania v. State
Hanania v. State
, 264 So.3d 317 (Fla. 2d
, 264 So.3d 317 (Fla. 2d
DCA 2019).
DCA 2019).
 
V
a
l
i
d
i
t
y
 
o
f
 
C
o
n
d
i
t
i
o
n
A
u
t
h
o
r
i
z
i
n
g
 
S
e
a
r
c
h
 
“condition of probation authoriz[ing]
“condition of probation authoriz[ing]
random, warrantless searches and
random, warrantless searches and
seizures 
seizures 
by any law enforcement
by any law enforcement
officer
officer
, without reasonable suspicion of
, without reasonable suspicion of
criminal conduct, is unconstitutional”
criminal conduct, is unconstitutional”
Precluded by 
Precluded by 
Grubbs v. State
Grubbs v. State
, 373 So. 2d
, 373 So. 2d
905, 910 (Fla. 1979).
905, 910 (Fla. 1979).
Bowman v. State
Bowman v. State
, 335 So.3d 135  (Fla. 4th
, 335 So.3d 135  (Fla. 4th
DCA 2022). See also 
DCA 2022). See also 
Thompson v. State
Thompson v. State
,
,
342 So.3d 841 (Fla. 2d DCA 2022)
342 So.3d 841 (Fla. 2d DCA 2022)
 
 
 
S
e
a
r
c
h
 
W
a
r
r
a
n
t
s
 
Information secured by PO in search
Information secured by PO in search
of probationer’s residents could be
of probationer’s residents could be
used to secure a search warrant.
used to secure a search warrant.
That could be basis for new charge.
That could be basis for new charge.
Upon discovering gun, PO stopped search
Upon discovering gun, PO stopped search
and advised detective who secured
and advised detective who secured
warrant.
warrant.
Ramos v. State
Ramos v. State
, 344 So.3d 526 (Fla. 2d
, 344 So.3d 526 (Fla. 2d
DCA 2022)
DCA 2022)
 
S
e
a
r
c
h
 
W
a
r
r
a
n
t
s
 
PO founds suspected drugs and
PO founds suspected drugs and
paraphernalia.
paraphernalia.
Stopped search & search warrant was
Stopped search & search warrant was
secured.
secured.
Drugs discovered in that warrant
Drugs discovered in that warrant
search could be used in new
search could be used in new
prosecution.
prosecution.
State v. Green
State v. Green
, 349 So.3d 503 (Fla. 1st
, 349 So.3d 503 (Fla. 1st
DCA 2022)
DCA 2022)
 
S
e
a
r
c
h
 
o
f
 
P
r
o
b
a
t
i
o
n
e
r
s
 
C
e
l
l
 
P
h
o
n
e
 
D
a
t
a
 
Totality of the circumstances and balancing
Totality of the circumstances and balancing
The suspicionless search of cell phone data
The suspicionless search of cell phone data
was valid.
was valid.
Conditions did not expressly authorize a
Conditions did not expressly authorize a
search of cell phone data.
search of cell phone data.
Probationer was a sex offender, his underlying
Probationer was a sex offender, his underlying
offenses were for sexual abuse of a minor
offenses were for sexual abuse of a minor
Results could only be used in VOP.
Results could only be used in VOP.
State v. Phillips
State v. Phillips
, 266 So.3d 873 (Fla. 5th DCA
, 266 So.3d 873 (Fla. 5th DCA
2019).
2019).
 
S
e
a
r
c
h
 
o
f
 
P
r
o
b
a
t
i
o
n
e
r
s
 
C
e
l
l
 
P
h
o
n
e
 
Did not search cell phone data.
Did not search cell phone data.
PO looked at the phone logs, photographs,
PO looked at the phone logs, photographs,
and the drone application.
and the drone application.
State’s interest outweighed privacy
State’s interest outweighed privacy
interests.
interests.
Def behavior important in determining the
Def behavior important in determining the
reasonableness of the search.
reasonableness of the search.
Facts supported conclusion that probationer
Facts supported conclusion that probationer
would use technology to stalk.
would use technology to stalk.
Parker v. State, 
Parker v. State, 
313 So.3d 737
313 So.3d 737
 (Fla. 2d DCA
 (Fla. 2d DCA
2020).
2020).
 
C
o
n
f
r
o
n
t
a
t
i
o
n
:
 
C
r
a
w
f
o
r
d
 
v
.
W
a
s
h
i
n
g
t
o
n
 
Does not apply to community control or
violation of probation proceedings.
P
r
i
v
i
l
e
g
e
 
A
g
a
i
n
s
t
 
S
e
l
f
-
I
n
c
r
i
m
i
n
a
t
i
o
n
 
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
Cassamassima v. State
, 657 So. 2d 906 (Fla. 5th
, 657 So. 2d 906 (Fla. 5th
DCA 1995)(en banc)
DCA 1995)(en banc)
A prior admission to a technical violation
A prior admission to a technical violation
may not be used as evidence in
may not be used as evidence in
subsequent proceedings.
subsequent proceedings.
T
i
m
e
 
t
o
 
C
o
n
s
u
l
t
 
Mere appointment of counsel is
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.
P
r
o
c
e
e
d
i
n
g
s
 
n
o
t
 
B
a
r
r
e
d
 
b
y
D
o
u
b
l
e
 
J
e
o
p
a
r
d
y
 
1.
Revocation reversed because it was
based solely on hearsay.
2.
First proceeding based solely on a
new arrest.
3.
Charge not originally alleged.
4.
Reversal due to 
insufficient evidence.
 
D
o
u
b
l
e
 
J
e
o
p
a
r
d
y
:
 
M
u
l
t
i
p
l
e
 
V
i
o
l
a
t
i
o
n
s
f
o
r
 
S
a
m
e
 
C
o
n
d
i
t
i
o
n
 
“Where probationary sentence had already
“Where probationary sentence had already
been enhanced for the same violation of a
been enhanced for the same violation of a
condition, a second enhancement or
condition, a second enhancement or
punishment 
punishment 
based upon the same
based upon the same
violation
violation
 would impose multiple
 would impose multiple
punishments for the same offense.”
punishments for the same offense.”
Barred by Double Jeopardy.
Barred by Double Jeopardy.
Can be raised first time on appeal.
Can be raised first time on appeal.
Mitchell v. State
Mitchell v. State
, 270 So.3d 562 (Fla. 4th
, 270 So.3d 562 (Fla. 4th
DCA 2019).
DCA 2019).
 
 
 
 
Rules of Proof & Evidence
Rules of Proof & Evidence
R
u
l
e
s
 
o
n
 
p
r
o
o
f
 
a
n
d
 
e
v
i
d
e
n
c
e
 
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.
 
H
e
a
r
s
a
y
 
C
o
m
b
i
n
e
d
 
W
i
t
h
 
P
e
r
s
o
n
a
l
O
b
s
e
r
v
a
t
i
o
n
 
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
Russell v. State
,
,
982 So.2d 642 (Fla. 2008).
982 So.2d 642 (Fla. 2008).
T
h
r
e
e
 
F
a
c
t
o
r
s
 
C
o
u
r
t
 
M
u
s
t
C
o
n
s
i
d
e
r
 
1.
Credibility of the particular
witnesses.
2.
Reliability of the available
evidence.
3.
Totality of the evidence under the
circumstances in each individual
case.
 
H
e
a
r
s
a
y
 
t
o
 
P
r
o
v
e
 
C
h
a
n
g
e
 
o
f
R
e
s
i
d
e
n
c
e
 
Marcus v. State
, 346 So.3d 117 (Fla. 2d
DCA 2022). See also Gross v. State, 346
So.3d 1284 (Fla. 1st DCA 2022).
Violation reversed
Only evidence mother’s statement to
PO that probationer was not living
with her anymore.
Failure to report was not sufficient
corroboration because it was not alleged
as a violation.
 
 
 
 
 
 
Sufficiency of Proof
Sufficiency of Proof
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. 4
th
 DCA
2020).
Must be court imposed condition.
T
w
e
l
v
e
 
H
e
l
p
f
u
l
 
Q
u
e
s
t
i
o
n
s
 
f
o
r
A
p
p
l
i
c
a
t
i
o
n
 
o
f
 
S
t
a
n
d
a
r
d
s
 
1.
Was defendant
s testimony unrebutted?
2.
Was the conduct inadvertent?
3.
Did it result from carelessness?
4.
Did defendant give even a questionable
explanation?
5.
Did the conduct involve a technical
violation?
6.
Did the defendant lack knowledge of the
condition?
Questions Continued
 
7.
Was the defendant asked to perform a
futile act?
8.
Did the conduct result from confusion or
physical or mental illness?
9.
Did the defendant make 
reasonable
efforts
 to comply?
10.
Was the requirement imposed solely by a
probation officer?
11.
Was there still sufficient time for the
defendant to comply?
12.
Did defendant take overt steps towards
violation?
 
B
u
r
d
e
n
:
 
M
u
l
t
i
p
l
e
 
R
e
a
s
o
n
a
b
l
e
 
I
n
f
e
r
e
n
c
e
s
 
The burden has not been met where one
The burden has not been met where one
inference is consistent with a violation,
inference is consistent with a violation,
but others are not.
but others are not.
Knocking on the door alone was insufficient
Knocking on the door alone was insufficient
where it was a reasonable inference that the
where it was a reasonable inference that the
defendant could have been asleep and not
defendant could have been asleep and not
heard the knocking.
heard the knocking.
Kegler v. State, 
Kegler v. State, 
313 So.3d 824
313 So.3d 824
 (Fla. 2d DCA
 (Fla. 2d DCA
2021).
2021).
Edwards v. State, 296 So.3d 986 (Fla. 2d DCA
Edwards v. State, 296 So.3d 986 (Fla. 2d DCA
2020).
2020).
Gorman v. State, 295 So.3d 1218 (Fla. 2d DCA
Gorman v. State, 295 So.3d 1218 (Fla. 2d DCA
2020. (blinds draw and lights out)
2020. (blinds draw and lights out)
 
C
h
a
n
g
i
n
g
 
R
e
s
i
d
e
n
c
e
 
b
y
 
F
o
r
c
e
 
Where defendant was arrested and
Where defendant was arrested and
ordered by a court not to return to his
ordered by a court not to return to his
residence, he did not commit a willful
residence, he did not commit a willful
violation by changing residence.
violation by changing residence.
Lovett v. State, 338 So.3d 1132 (Fla. 1st
DCA 2022).
R
e
q
u
i
r
e
m
e
n
t
s
 
I
m
p
o
s
e
d
 
B
y
 
P
r
o
b
a
t
i
o
n
O
f
f
i
c
e
r
 
Cannot impose new conditions.
“may impose reasonable, necessary
procedures and directions for
implementing court-imposed
provisions.”
Provide HIPPA release - a new condition.
“State failed to establish that this was
reasonable and necessary for
implementing a court-imposed condition.”
Marchan v. State
, 192 So.3d 658 (Fla. 2d
DCA 2016).
 
R
e
q
u
i
r
e
m
e
n
t
 
I
m
p
o
s
e
d
 
B
y
 
P
O
 
No contact order issued by PO was not
valid.
Could not be the basis for a VOP.
Jackson v. State, 290 So.3d 1037 (Fla. 2d
DCA 2020).
 
V
a
l
i
d
 
R
e
q
u
i
r
e
m
e
n
t
 
I
m
p
o
s
e
d
 
B
y
 
P
O
 
Defendant on sex offender probation and
Defendant on sex offender probation and
ordered by court not to be on the internet.
ordered by court not to be on the internet.
Probation officer’s restriction that
Probation officer’s restriction that
defendant not possess a cell phone with
defendant not possess a cell phone with
internet access was 
internet access was 
reasonably related
reasonably related
and valid
and valid
.
.
Pinnock v. State
, 236 So.3d 488 (Fla. 2d
DCA 2018).
 
P
a
y
m
e
n
t
 
f
o
r
 
C
o
n
d
i
t
i
o
n
s
 
Could not be found in violation of
Could not be found in violation of
probation for failure to pay drug testing
probation for failure to pay drug testing
where he was required to participate in
where he was required to participate in
such testing, but the probation order said
such testing, but the probation order said
nothing about payment.
nothing about payment.
This constitutes fundamental error.
This constitutes fundamental error.
Herrera v. State
Herrera v. State
, 286 So.3d 867 (Fla. 2d
, 286 So.3d 867 (Fla. 2d
DCA 2019).
DCA 2019).
 
R
a
i
s
i
n
g
 
I
n
v
a
l
i
d
i
t
y
 
o
n
 
V
O
P
 
By statute defendant cannot raise error on
By statute defendant cannot raise error on
appeal that does not occur 
appeal that does not occur 
after
after
 the order
 the order
of probation.
of probation.
So the defendant could not object to the
So the defendant could not object to the
validity of a condition on a VOP
validity of a condition on a VOP
proceeding.
proceeding.
Court lacks jurisdiction.
Court lacks jurisdiction.
This was a condition of banishment.
This was a condition of banishment.
Wurtzel v. State, 
Wurtzel v. State, 
314 So.3d 608 
314 So.3d 608 
(Fla. 3d
(Fla. 3d
DCA 2020)
DCA 2020)
 
S
u
f
f
i
c
i
e
n
c
y
 
o
f
 
N
o
t
i
c
e
 
T
o
E
s
t
a
b
l
i
s
h
 
W
i
l
f
u
l
l
n
e
s
s
 
Oral notice of a condition is not
Oral notice of a condition is not
generally sufficient.
generally sufficient.
Violation reversed where defendant told at
Violation reversed where defendant told at
sentencing he could not possess drugs,
sentencing he could not possess drugs,
but that was not in order.
but that was not in order.
Chaney v. State
, 233 So.3d 1255  (Fla. 3d
DCA 2017).
 
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Probationer did not dispute but the Court
Probationer did not dispute but the Court
reversed.
reversed.
No testimony whatsoever regarding
No testimony whatsoever regarding
how, when, where, or why he failed
how, when, where, or why he failed
to report to probation or to perform
to report to probation or to perform
community service.
community service.
Probationer did not have the burden to
Probationer did not have the burden to
explain. State had burden to show
explain. State had burden to show
willfulness.
willfulness.
Weaver v. State
, 335 So.3d 774 (Fla. 2d
DCA 2022)
F
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p
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No per se rule.
Can be a basis for revocation under
certain circumstances.
Has defendant made a reasonable effort.
Would it be unfair?
Motive, intent, and attitude.
State v. Carter, 
835 So.2d 259 (Fla. 2002).
 
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R
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m
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s
 
The court reversed VOP based on failure to wear
The court reversed VOP based on failure to wear
monitoring device.
monitoring device.
The evidence was insufficient to establish a
The evidence was insufficient to establish a
willful violation 
willful violation 
where on one occasion the
where on one occasion the
defendant moved away from the device for
defendant moved away from the device for
five minutes.
five minutes.
The device was on a charger in the homeless
The device was on a charger in the homeless
shelter while the defendant went to the
shelter while the defendant went to the
cafeteria.
cafeteria.
King v. State
King v. State
, 268 So.3d 936 (Fla. 1st DCA
, 268 So.3d 936 (Fla. 1st DCA
2019).
2019).
 
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R
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m
e
n
t
s
 
Douglas v. State
, 333 So.3d 353 (Fla. 2d
DCA 2022).
Violation reversed where Defendant
testified that he lost the GPS device,
but there was no evidence he had
deliberately done so.
F
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May find a willful and substantial violation where
defendant fails to complete a court-ordered drug
treatment program, despite no statement as to
time or opportunities.
Probation orders need not include every
possible restriction.
Test: would it put a reasonable person on
notice of what conduct would subject him
or her to revocation.
Lawson v. State
, 969 So.2d 222 (Fla. 2007).
 
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Even where number of chances or
time limit is not specified, 
court has
discretion to find a defendant in willful
and substantial violation of probation
for failure to attend and complete a sex
offender treatment program.
Adams v. State
, 979 So.2d 921 (Fla.
2008). See also 
Mendoza v. State
, 349
So.3d 912 (Fla. 3d DCA 2022).
 
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I
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a
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t
y
 
Defendant did not go because he couldn’t
Defendant did not go because he couldn’t
pay.
pay.
He was homeless and jobless, despite
He was homeless and jobless, despite
actively searching for employment.
actively searching for employment.
The failure to attend was not willful.
The failure to attend was not willful.
King v. State
King v. State
, 268 So.3d 936 (Fla. 1st DCA
, 268 So.3d 936 (Fla. 1st DCA
2019).
2019).
 
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Defendant could be violated for not
Defendant could be violated for not
completing sex offender counseling where
completing sex offender counseling where
he was dismissed because he refused
he was dismissed because he refused
to admit any offending behavior.
to admit any offending behavior.
This was true even though the admission
This was true even though the admission
was not a condition of probation and he
was not a condition of probation and he
did not admit it at the time of the plea.
did not admit it at the time of the plea.
He could have withdrawn his plea.
He could have withdrawn his plea.
Staples v. State
Staples v. State
, 161 So.3d 561 (Fla. 5
, 161 So.3d 561 (Fla. 5
th
th
DCA 2014).
DCA 2014).
 
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Cannot be basis of violation if defendant
Cannot be basis of violation if defendant
made 
made 
reasonable efforts
reasonable efforts
.
.
Failure to complete must be 
Failure to complete must be 
defendant’s
defendant’s
fault.
fault.
 
 
Henry v. State
Henry v. State
, 
, 
313 So.3d 757
313 So.3d 757
 (Fla.
 (Fla.
2d DCA 2020).
2d DCA 2020).
 
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Must be evidence that defendant was in
Must be evidence that defendant was in
some matter responsible. 
some matter responsible. 
D.G. v.
D.G. v.
State
State
, 
, 
315 So.3d 72
315 So.3d 72
 (Fla. 3d DCA 2020)
 (Fla. 3d DCA 2020)
Violation reversed where Defendant was
Violation reversed where Defendant was
in  ER in the morning and there was no
in  ER in the morning and there was no
evidence as to time of day of session.
evidence as to time of day of session.
Faulstick v. State
Faulstick v. State
, 333 So.3d 797 (Fla.  5th
, 333 So.3d 797 (Fla.  5th
DCA 2022).
DCA 2022).
V
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m
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t
s
 
State has burden of showing by the
State has burden of showing by the
greater weight of the evidence that
greater weight of the evidence that
the defendant had the ability to pay.
the defendant had the ability to pay.
Defendant cannot be required to rebut by
Defendant cannot be required to rebut by
the higher burden of clear and convincing
the higher burden of clear and convincing
evidence.
evidence.
May consider whether defendant divested
May consider whether defendant divested
himself of money.
himself of money.
May consider employability.
May consider employability.
Del Valle v. State,
Del Valle v. State,
 80 So.3d 999 (Fla.
 80 So.3d 999 (Fla.
2011).
2011).
 
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s
 
The failure of the trial court to
The failure of the trial court to
inquire into ability to pay and to
inquire into ability to pay and to
make explicit findings constitutes
make explicit findings constitutes
fundamental error.
fundamental error.
Herrera v. State
Herrera v. State
, 
, 
286 So.3d 867 
286 So.3d 867 
(Fla. 2d
(Fla. 2d
DCA 2019).
DCA 2019).
 
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t
 
Defendant still had time to pay costs when
Defendant still had time to pay costs when
the violation was filed.
the violation was filed.
Probation order did not specify that
Probation order did not specify that
Defendant had to make monthly
Defendant had to make monthly
payments or pay a certain amount by
payments or pay a certain amount by
a certain date.
a certain date.
There was no willful or substantial
There was no willful or substantial
violation because the probationer still had
violation because the probationer still had
time to complete the requirement.
time to complete the requirement.
Herrera v. State
Herrera v. State
, 
, 
286 So.3d 867 
286 So.3d 867 
(Fla. 2d
(Fla. 2d
DCA 2019).
DCA 2019).
 
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E
m
p
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o
y
e
d
 
The fact that the defendant was in arrears
The fact that the defendant was in arrears
but was employed was insufficient to
but was employed was insufficient to
prove a willful violation of probation.
prove a willful violation of probation.
Court failed to inquire into the
Court failed to inquire into the
defendant’s ability to pay and make
defendant’s ability to pay and make
explicit findings of willfulness.
explicit findings of willfulness.
Contreras v. State
Contreras v. State
, 274 So.3d 532 (Fla. 2d
, 274 So.3d 532 (Fla. 2d
DCA 2019).
DCA 2019).
 
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n
 
Defendant was the full time caretaker for
Defendant was the full time caretaker for
his disabled wife.
his disabled wife.
State failed to establish any
State failed to establish any
reasonable alternative.
reasonable alternative.
On appeal Court ordered restitution be
On appeal Court ordered restitution be
converted to order of restitution.
converted to order of restitution.
Skipper v. State
, 189 So.3d 269 (Fla. 2d
DCA 2016).
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Acquittal
 as to new charge does not
preclude VOP based on the same conduct.
Dismissal
 for failure to establish a prima
facie case in a bench trial does not bar a
revocation based on that new charge.
Cannot violate for 
traffic infraction
unless a special condition bars such
conduct.
No conviction required.
 
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s
e
 
Arrest
 alone is insufficient for a violation.
Hines v. State
, 
358 So. 2d 183, 185 (Fla.
1978)
No contest
 plea without a judgment of
guilt. (i.e. a conviction).
Defendant is entitled to an opportunity
where there is a no contest plea to explain
that he did not commit the act.
Uncounseled plea
 where there was a
right to counsel.
 
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s
e
 
Defendant’s testimony that he was a
arrested and entered a plea 
without
specification of guilty or no contest.
Contreras v. State, 
274 So.3d 532 (Fla. 2d
DCA 2019).
Possession of ammunition alone
where charge is violation by possession of
a weapon. 
Dileonardo v. State
, 292 So.3d
511 (Fla. 2d DCA 2020)
 
 
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Proof by a preponderance of the evidence
of the criminal act
Guilty plea.
Proof of adjudication (i.e. conviction)
Confession to new offense.
Certified copy of conviction, but if the
conviction is overturned the VOP is invalid.
Proof of conviction of a necessarily-lesser
included  of the offense alleged in the
affidavit.
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e
 
PO’s testimony as to administering field
PO’s testimony as to administering field
test is not hearsay.
test is not hearsay.
A PO is not required in a VOP to be
qualified as an expert to testify as to
results of the field test.
PO’s training and experience with tests
goes to the weight of evidence.
Lab test was hearsay and it was
corroborated by PO’s testimony.
State v. Queior
,  191 So.3d 388 (Fla.
2016).
 
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t
s
 
Testimony of an arresting officer
Testimony of an arresting officer
interpreting results of a field test he
interpreting results of a field test he
watched another officer administer is
watched another officer administer is
not hearsay.
not hearsay.
That nonhearsay testimony and the
That nonhearsay testimony and the
hearsay lab test was sufficient to establish
hearsay lab test was sufficient to establish
a VOP.
a VOP.
Ware v. State
, 197 So.3d 1147 (Fla. 2d
DCA 2016).
 
 
 
 
 
 
Judgment & Sentence
Judgment & Sentence
 
V
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:
 
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Determination by a preponderance of the
Determination by a preponderance of the
evidence of whether there is a violation.
evidence of whether there is a violation.
Determination of whether probation
Determination of whether probation
should be revoked. (sentencing)
should be revoked. (sentencing)
Defendant has a right to be heard in
Defendant has a right to be heard in
each part.
each part.
Lacey v. State
Lacey v. State
, 
, 
312 So.3d 97
312 So.3d 97
(Fla. 4
(Fla. 4
th
th
 DCA
 DCA
2021)
2021)
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The court must make written findings.
The court must specify which violations
were proven.
If possible, indicate which ones
would have been sufficient to sustain
sentence.
Do not enter a second judgment of
conviction.
Adjudication is not required if the
defendant has already been adjudicated.
 
Costs & Fees
 
Stancil v. State
, 331 So.3d 264  (Fla. 1st
DCA 2021).
Mandatory minimum costs and attorneys
must be imposed on violations as well as
original proceedings.
S
e
n
t
e
n
c
i
n
g
 
O
p
t
i
o
n
s
 
1.
Revoke probation and 
impose any
sentence that could have originally
been imposed.
2.
Jail.
3.
Modify probation by changing or adding
terms.
4.
Extend term of probation.
5.
Continue term.
6.
Special provisions for transferring to
drug court or mental health court or
veterans and service members court.
 
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a
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i
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n
 
Apprendi
Apprendi
 applies.
 applies.
If the State is seeking to increase the
If the State is seeking to increase the
sentence beyond the max based on a
sentence beyond the max based on a
statutory factor, 
statutory factor, 
a jury must decide
a jury must decide
whether the factor applies.
whether the factor applies.
Here the statute provided for a nonstate
Here the statute provided for a nonstate
sanction unless the defendant was a
sanction unless the defendant was a
danger to the community.
danger to the community.
Shields v. State
Shields v. State
, 296 So.3d 967 (Fla. 2d
, 296 So.3d 967 (Fla. 2d
DCA 2020).
DCA 2020).
 
N
o
 
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e
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M
a
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o
r
y
 
R
e
v
o
c
a
t
i
o
n
 
§948.06(8)(e) requires revocation for
§948.06(8)(e) requires revocation for
certain crimes when the court makes a
certain crimes when the court makes a
finding that the defendant is a danger to
finding that the defendant is a danger to
the community.
the community.
That is not an increase in the mandatory
That is not an increase in the mandatory
minimum or maximum  sentence.
minimum or maximum  sentence.
Thus 
Thus 
Apprendi
Apprendi
 does not apply and a
 does not apply and a
jury is not required.
jury is not required.
Hollingsworth v. State
Hollingsworth v. State
, 293 So.3d 1049
, 293 So.3d 1049
(Fla. 4
(Fla. 4
th
th
 DCA 2020)
 DCA 2020)
 
F
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s
 
a
s
 
T
o
 
D
a
n
g
e
r
 
Douglas v. State
, 
351 So.3d 264 (Fla. 2d
DCA 2022).
948.06 (8)(e)1 [Danger to Community]
Statutory Findings must in writing.
Findings must be specific and not merely
parrot language of statute.
 
V
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a
 
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a
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a
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n
 
Where defendant is given probation as a
Where defendant is given probation as a
result of a plea bargain,
result of a plea bargain,
 the court can
 the court can
impose any lawful sentence because
impose any lawful sentence because
the VOP is a breach of the plea
the VOP is a breach of the plea
bargain.
bargain.
Defendant rendered substantial
Defendant rendered substantial
assistance, got probation and violated.
assistance, got probation and violated.
Despite the assistance she was “buried”
Despite the assistance she was “buried”
on sentencing for the VOP.
on sentencing for the VOP.
Kelley v. State
Kelley v. State
, 309 So.3d 306 (Fla. 2d
, 309 So.3d 306 (Fla. 2d
DCA 2020)
DCA 2020)
 
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a
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O
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i
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:
 
§
9
4
8
.
0
6
(
2
)
(
f
)
 
If a probationer has less than 90 days of
supervision remaining on his or her term
of probation and meets the criteria for
mandatory modification or continuation
the court may revoke probation and
sentence the probationer to a maximum of
90 days in county jail.
 
M
M
a
a
n
n
d
d
a
a
t
t
o
o
r
r
y
y
 
 
M
M
o
o
d
d
i
i
f
f
i
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c
c
a
a
t
t
i
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o
o
n
n
 
 
o
o
r
r
C
C
o
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a
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o
n
n
 
 
§
§
9
9
4
4
8
8
.
.
0
0
6
6
(
(
2
2
)
)
(
(
f
f
)
)
 
 
w
w
h
h
e
e
n
n
 
 
a
a
l
l
l
l
o
o
f
f
 
 
t
t
h
h
e
e
s
s
e
e
 
 
c
c
o
o
n
n
d
d
i
i
t
t
i
i
o
o
n
n
s
s
 
 
a
a
r
r
e
e
 
 
m
m
e
e
t
t
 
 
.
.
 
The term of supervision is probation.
The term of supervision is probation.
Not a violent felony offender of special concern.
Not a violent felony offender of special concern.
The violation is a low-risk technical violation, as
The violation is a low-risk technical violation, as
defined in 948.06(9)(b). 
defined in 948.06(9)(b). 
Only applies where
Only applies where
offender has only one violation. 
offender has only one violation. 
Schmidt v.
Schmidt v.
State
State
, 310 So.3d 135 (Fla. 1
, 310 So.3d 135 (Fla. 1
st
st
 DCA 2020).
 DCA 2020).
Not previously found in violation of probation
Not previously found in violation of probation
pursuant to a filed violation of probation affidavit
pursuant to a filed violation of probation affidavit
during the current term of supervision.
during the current term of supervision.
Must meet all conditions. 
Must meet all conditions. 
Owens v. State
,
303 So.3d 993 (Fla. 1st DCA 2020).
 
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a
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a
t
i
o
n
 
i
n
 
A
S
P
 
 A probationer who has successfully
completed sanctions through the
alternative sanctioning program is eligible
for mandatory modification or continuation
of his or her probation.
 
J
a
i
l
 
a
s
 
a
 
C
o
n
d
i
t
i
o
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t
o
 
M
a
n
d
a
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o
r
y
M
o
d
i
f
i
c
a
t
i
o
n
 
o
r
 
C
o
n
t
i
n
u
a
n
c
e
 
 
Upon modifying probation the court may
include in the sentence a maximum of 90
days in county jail as a special condition of
probation.
W
i
t
h
h
o
l
d
i
n
g
 
O
f
 
A
d
j
u
d
i
c
a
t
i
o
n
 
Jail 
Jail 
not
not
 as a condition of probation
 as a condition of probation
requires an adjudication. Rule 3.670.
requires an adjudication. Rule 3.670.
Must adjudicate on a revocation 
Must adjudicate on a revocation 
unless
unless
there has already been adjudication.
there has already been adjudication.
§ 948.06(2)(b) & (e)
§ 948.06(2)(b) & (e)
.
.
May continue a withholding on an
May continue a withholding on an
extension of probation even if ct. also
extension of probation even if ct. also
imposes a suspended sentence.
imposes a suspended sentence.
Fowler v. State
, 225 So.3d 1005 (Fla. 1st
DCA 2017).
 
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Judge improperly withheld and sentenced
the defendant to prison with credit for
time served followed by probation.
On remand the judge could 
withhold
adjudication,
 
place defendant on
probation, a special condition of
which will be credit for time already
served.
State v. Jene-Charles
, 253 So.3d 109 (Fla.
3d DCA 2018).
 
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There was 
There was 
no specified time in which
no specified time in which
funds had to be paid and here was
funds had to be paid and here was
still time left to pay.
still time left to pay.
This is an improper consideration in
This is an improper consideration in
sentencing.
sentencing.
Denial of due process.
Denial of due process.
Lacey v. State
Lacey v. State
, 
, 
312 So.3d 97
312 So.3d 97
 (Fla. 4
 (Fla. 4
th
th
 DCA
 DCA
2021).
2021).
 
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1.
Impose another youthful offender sentence,
with no minimum mandatory.
2.
Impose an adult Criminal Punishment Code
(CPC) sentence, which would require imposition
of any minimum mandatory term of
incarceration associated with the offense of
conviction. 
Eustache v. State
, 248 So.3d 1097
(Fla. 2018).
If sentenced in excess of six years, offender
cannot retain youthful offender status. 
Grillo v.
State
, 333 So.3d 1198  (Fla. 5th DCA 2022)
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Trial judge could make the finding that the
defendant was a danger to the community
based on the evidence presented in the
VOP hearing.
Defendant must have an opportunity to
contest the evidence.
There is no statutory requirement
that there be a separate evidentiary
hearing. 
Smith v. State
, 248 So.3d 235
(Fla. 4th DCA 2018).
 
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Findings that offender is a danger to the
Findings that offender is a danger to the
community must be in writing.
community must be in writing.
Smith v. State
Smith v. State
, 306 So.3d 1147(Fla. 3d DCA
, 306 So.3d 1147(Fla. 3d DCA
2020).
2020).
Based on statutory changes lewd or lascivious
Based on statutory changes lewd or lascivious
assault does not qualify for VFOSC designation.
assault does not qualify for VFOSC designation.
Byers v. State
, 330 So.3d 1044 (Fla. 1st DCA
2021).
Court may not sua sponte dismiss affidavit.
State v. Gutierrez,
 333 So.3d 806 (Fla. 3d DCA
2022)
 
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If court originally imposes probation
subject to a suspended sentence,
cannot give more than the
suspended sentence on VOP.
On a misdemeanor, 
if the court
certified no jail originally, that also
applies to sentencing on violation.
If defendant was adjudicated at original
If defendant was adjudicated at original
sentencing 
sentencing 
it is improper to
it is improper to
adjudicate again on revocation.
adjudicate again on revocation.
 
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No credit for probation or CC against
term of incarceration. §948.06(3).
Young v. State
Young v. State
, 697 So.2d 75 (Fla.1997).
, 697 So.2d 75 (Fla.1997).
New probation or CC: when added to
New probation or CC: when added to
previously served probation, CC &
previously served probation, CC &
imprisonment cannot exceed
imprisonment cannot exceed
statutory maximum.
statutory maximum.
Credit for new probation or CC need
Credit for new probation or CC need
only be given if necessary to avoid
only be given if necessary to avoid
exceeding the statutory maximum.
exceeding the statutory maximum.
 
 
 
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Defendant must be given credit
Defendant must be given credit
against the entire term of probation
against the entire term of probation
for any jail served as a condition of
for any jail served as a condition of
probation.
probation.
When that was done in this case term of
When that was done in this case term of
probation expired before filing of
probation expired before filing of
subsequent VOP and court loss
subsequent VOP and court loss
jurisdiction.
jurisdiction.
Smith v. State
,  348 So.3d 1208 (Fla. 5th
DCA 2022)
 
THE END!
THE END!
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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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  1. Violations of Probation By David A. Demers

  2. Objective Discuss ways to properly address issues which arise in violation of probation hearings.

  3. 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).

  4. Jurisdiction

  5. 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.

  6. 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)

  7. 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)

  8. 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.

  9. 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).

  10. 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.

  11. 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)

  12. 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).

  13. 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).

  14. 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.

  15. 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)

  16. 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.

  17. 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.

  18. 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).

  19. 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.

  20. 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).

  21. 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.

  22. 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!

  23. Rights of Defendant

  24. 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-

  25. 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

  26. 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.

  27. 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).

  28. 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).

  29. 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).

  30. 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)

  31. 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

  32. 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).

  33. 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).

  34. 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).

  35. 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).

  36. 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).

  37. 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).

  38. 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)

  39. 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)

  40. 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)

  41. 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).

  42. 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).

  43. 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

  44. 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

  45. Rules of Proof & Evidence

  46. 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.

  47. 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).

  48. 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.

  49. Sufficiency of Proof

  50. 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.

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