probation law

So you can teach your judges and lawyers…

By the Honorable Janeice T. MartinCounty Court Judge, Collier County, FL(239) 252-6846jmartin@ca.cjis20.org

PROBATION LAW

OUTLINE Intro Original Sentencing Supervision Search & Seizure Jurisdiction Warrants Proving your case Sentencing on the Violation Q&A

INTRO

Who are you and why does this matter anyway?

Important disclaimer…

ORIGINAL SENTENCING

SOME CHARGES REQUIRE PROBATION

DUI

DV BATTERY

OTHERS?

ORIGINAL SENTENCING

But what if he’s in jail for a while first?

What if she’s already served the max in jail?

But what about a subsequent VOP?

ORIGINAL SENTENCING

What about terms that have several providers – can I choose?

What if the DL was revoked – should I seize & surrender it?

ORIGINAL SENTENCING

Any limits on what can be ordered as a condition of probation?

Can “no alcohol” be a condition on a Worthless Check probation? Why or why not?

ORIGINAL SENTENCING

What about (ugh) the Interstate Compact?

Can’t we just sentence around it?

What about mail vs. transfer?

ORIGINAL SENTENCING

What if the judge did it wrong?

Can I change or add to the sentence in any way?

Is timing important, if a mistake is discovered?

SUPERVISION

Document, document, document!!

Do so at or near the time of the event you are documenting

SUPERVISION

GENERAL VS. SPECIFIC TERMS (§948.03):

Specific must be pronounced by the judge at sentencing Ex: Complete Anger Management

General do not require oral pronouncement Ex: Reporting

SUPERVISION

Is drug/alcohol testing a general term or specific?

Is “no alcohol” general or specific?

SUPERVISION

What are the limits on the 5th Amendment during supervision? Can they refuse to answer your

questions regarding compliance with probation?

Can they refuse to answer questions about a new offense for which they could be prosecuted?

What if they’ve already pled, so it can no longer be prosecuted separately?

SEARCH & SEIZURE

Is this a general term, or a specific term?

Neither?

SEARCH & SEIZURE

What are limits of probation’s warrantless search powers?

Require probable cause first? More? Less?

Where can you look?

Can new charges be prosecuted based on what you find? Ex: cocaine in a drawer

SEARCH & SEIZURE

Example: Detective Smith calls you up and invites you to join him in the field to pay a little visit to Defendant Jones. The detective tells you they have information that Defendant Jones has been dealing drugs out of his home. Defendant Jones is on probation with you for driving on a suspended license.

SEARCH & SEIZURE

Can you go visit Defendant Jones?

Can Detective Smith come with you?

What can you do once you get there?

What can Detective Smith do?

SEARCH & SEIZURE

What if instead Defendant Jones is on probation with you for Possession of Marijuana?

Does this make a difference?

SEARCH & SEIZURE

Does the obligation to live without violating the law blow this wide open?

Ex: Can you go through his bank records to look for evidence of fraud?

JURISDICTION

Basic Rule: You have jurisdiction to enforce the terms of the sentence for the entire term of probation.

Ex: Sentence of 6 month probation gives jurisdiction for 6 months

JURISDICTION Jurisdiction can be up to the

maximum allowed under the statute governing each charge. Ex: A battery (M1) can have up to one

year of probation imposed Ex: An Expired DL (M2) can have up to 6

months of probation imposed EXCEPTION: when alcohol is a

“significant factor,” probation for any MM can be up to 1 year

JURISDICTION

Question: you have someone on probation for a DUI, and have become concerned they may suffer from a mental illness that will affect their ability to comply. Can you direct them to have a

psychiatric evaluation? Can the judge do so? Why or why not? Can you remove terms? Can the judge?

JURISDICTION

But isn’t it true that a judge has jurisdiction to modify the terms of probation throughout the duration of the probation?

What’s the problem here?

JURISDICTION

What if a probationer was given 6 months to complete the terms of probation on a Battery charge, and is about to run out of time? Can you agree to extend his sentence to

12 months so that he won’t get violated?

What if the defendant is on board, and doesn’t object?

JURISDICTION

Tips to avoid problems: Encourage your judges and prosecutors

to craft sentences with adequate time, and then provide for early termination

Encourage your judges and prosecutors to impose deadlines for compliance along the way to deter procrastination

Ex: Enroll in Shoplifting Class within first 30 days of probation

JURISDICTION What if there is a VOP? Ex: Defendant gets 12 months

probation on a Battery charge, and violates in month 9 by absconding. You promptly get a warrant, which remains pending, unserved. Six months later (what would’ve been month 15), he gets a new arrest. May you amend your Affidavit to include the new arrest? Why or why not?

JURISDICTION Section 948.06(1)(f) provides for

tolling of the period of probation once an Affidavit has been filed and Warrant issued

Tolled until Judge rules on the VOP If found not guilty, then D gets credit

for all tolled time Courts have interpreted this to allow

amended VOP for new crimes during toll period

JURISDICTION Is there a constitutional problem

here? Defendant could be exposed to

violation for a period well beyond the statutory maximum

Counter-argument: Defendant never finished sentence, so door should stay open

Question: does/should State have to prove original VOP basis in order to pursue VOP from during tolling period?

JURISDICTION

Another question: what if the Defendant was in jail when he was sentenced?

When does your jurisdiction (probation) begin?

What if he’s in jail on some other charge for the whole period of your probation?

WARRANTS

What triggers the VOP – the Affidavit or the Warrant?

Which is necessary in order to maintain jurisdiction to prosecute the VOP?

Widman Act Warrant – still need an Affidavit, but don’t duplicate warrant

Sidebar: must be SWORN – notary must give oath and witness signature!

WARRANTS

What should the warrant include? Can anything be implied (left

unstated), such as “associating with others engaged in criminal activity” by virtue of an allegation of a dirty urine screen for cocaine?

What if there is still time left to complete what’s outstanding?

WARRANTS

Absolute rule: You cannot convict for uncharged conduct. Stated another way, you must allege everything which you believe will support a violation

Even if D admits other conduct, it won’t sustain a VOP if wasn’t charged

Because standard is willful and substantial, you may need more than one basis Ex: Condition 5 & 7 for a single failed u/a

PROVING YOUR CASE

Burden is “preponderance” or “greater weight of the evidence” Tip the scales Less than burden for new charge –

beyond a reasonable doubt Thus can suffer VOP even if win trial on

the new charge that triggered the VOP Violation must be willful and

substantial

PROVING YOUR CASE

No right against self-incrimination But D testimony cannot be used in

separate criminal prosecution Hearsay is admissible

But cannot be sole evidence of violation Lab reports can be admitted as biz

records, but likely cannot be sole evidence

Probation file is biz record, but fellow PO likely cannot prove VOP with your file alone

PROVING YOUR CASE

Be sure to note in your file any and all statements of the D that may support violation There statements are not hearsay and

can save the VOP if another PO has to testify in your place by simply using your file

PROVING YOUR CASE

Be sure all allegations have been put in Affidavit

Be sure all supporting documents, reports, witnesses & other evidence have been provided to the State

Be sure your file is complete Dress appropriately Speak clearly & maintain objectivity

PROVING YOUR CASE

With regard to financial violations: Pay attention to details that establish

ability to pay – where do they work, what is their education/ability, where do they live

If your jurisdiction uses community service statute, be sure to offer that early if D claims can’t pay – document this offer

Understand that sometimes we just can’t get blood from a stone…

SENTENCING THE VOP GLOSSARY:

Continue (same as reinstate) – puts D back on original track and terms

Revoke – must adjudicate (if not already) and resentence to any sentence could have done originally (can be time served and costs, but is still a resentencing)

Terminate – ends obligation to court Dismiss – puts D back in position pre-

warrant – D gets credit for tolled time – may effectively yield termination

SENTENCING THE VOP

GLOSSARY (CONT’D) Modify: requires an admission to VOP or

a finding by court of VOP REQUIRES AN ORDER – NOT A JUDGMENT! This is NOT a re-sentencing Original terms remain, and only those

specifically enumerated get changed Typically used to maintain a withheld

adjudication Because there was a VOP, can enhance/add

terms to original sentence

SENTENCING THE VOP

Court can revoke probation that hasn’t even started yet Ex: consecutive terms with VOP in 1st

term Court can ignore CPC if modifying or

continuing It’s only a sentencing if probation is

revoked Then CPC applies and must be followed

QUESTIONS???