FACC 2016 TRAINING INSTITUTE ANNUAL CONFERENCE

1. FACC 2016 TRAINING INSTITUTEANNUAL CONFERENCE PROBATION LAW / JUDICIAL COMMENTS Honorable J.M. McGarity Collier County Judge (239) 252-8747

2. AGENDA Appearance: Dress Attitude Behavior Values of Conduct: Commitment to Duty Competence Confidence Courage Candor Warrantless Violation of Probation Arrest Widman Warrant Mobley v. State, 2016 WL 3011684, (Fla. 4th DCA 2016)

3. Appearance / Courtroom Dress Code Standard: Appropriate business attire is required of all litigants, witnesses, jurors, and observers when appearing in court. Casual attire such as tee shirts, shorts, jeans, and flip-flops are not allowed.  Since the courtroom is generally very cool, participants may wish to bring a sweater or light jacket.  Suggestion: A smart work outfit – I do not require coat and tie or suit from probation officers routinely appearing before me. If uncertain check with your local court supervisor.

4. Appearance / AttitudeMy attitudes have been shaped for the past 60 plus years. They come from: Scouting: Oath and Promise Cadet Honor Code: "A cadet will not lie, cheat, steal, or tolerate those who do.“ U.S. Army: Code of Conduct. The Ranger Creed – “Rangers, Lead the Way!”The Law / Bar: Creed of Professionalism / My word is my bond.

5. Appearance / Behavior • PROBATION OFFICER CONDUCT AND COURTROOM DECORUM • A Probation Officer always should interact with parties, counsel, witnesses, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings.

6. Appearance / Behavior • PROBATION OFFICER CONDUCT AND COURTROOM DECORUM • A Probation Officer always should interact with parties, counsel, witnesses, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings. • Understand that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses or at any other time, absolutely are prohibited.

7. Appearance / Behavior • PROBATION OFFICER CONDUCT AND COURTROOM DECORUM • A Probation Officer always should interact with parties, counsel, witnesses, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings. • Understand that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses or at any other time, absolutely are prohibited. • During hearings, disclose the identities of witnesses anticipated to be called and cooperate in sharing with counsel evidence to be proffered.

8. Appearance / Behavior • PROBATION OFFICER CONDUCT AND COURTROOM DECORUM • A Probation Officer always should interact with parties, counsel, witnesses, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings. • Understand that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses or at any other time, absolutely are prohibited. • During hearings, disclose the identities of witnesses anticipated to be called and cooperate in sharing with counsel evidence to be proffered. • Abstain from conduct calculated to detract or divert the judge's attention from the relevant facts or otherwise cause the fact finder to reach a decision on an impermissible basis. Do not knowingly misstate, distort, or improperly exaggerate any fact or opinion nor mislead anyone.

9. Appearance / Behavior • PROBATION OFFICER CONDUCT AND COURTROOM DECORUM • A Probation Officer always should interact with parties, counsel, witnesses, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings. • Understand that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses or at any other time, absolutely are prohibited. • During hearings, disclose the identities of witnesses anticipated to be called and cooperate in sharing with counsel evidence to be proffered. • Abstain from conduct calculated to detract or divert the judge's attention from the relevant facts or otherwise cause the fact finder to reach a decision on an impermissible basis. Do not knowingly misstate, distort, or improperly exaggerate any fact or opinion nor mislead anyone. • A question should not be interrupted unless there is a reasonable ground to believe that information is being included that should not be disclosed to the judge.

10. Appearance / Behavior • PROBATION OFFICER CONDUCT AND COURTROOM DECORUM • A Probation Officer always should interact with parties, counsel, witnesses, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings. • Understand that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses or at any other time, absolutely are prohibited. • During hearings, disclose the identities of witnesses anticipated to be called and cooperate in sharing with counsel evidence to be proffered. • Abstain from conduct calculated to detract or divert the judge's attention from the relevant facts or otherwise cause the fact finder to reach a decision on an impermissible basis. Do not knowingly misstate, distort, or improperly exaggerate any fact or opinion nor mislead anyone. • A question should not be interrupted unless there is a reasonable ground to believe that information is being included that should not be disclosed to the judge. • When the judge makes a ruling do not seek to circumvent the effect of that ruling unless the evidence before the judge is tainted. Ask to approach and if granted show the judge the discrepancy. This allows your state attorney to make a record for later proceedings of the ground for urging the admissibility of the evidence in question and does not preclude efforts by the state attorney to have the evidence admitted through other, proper means.

11. Appearance / Behavior • PROBATION OFFICER CONDUCT AND COURTROOM DECORUM • A Probation Officer always should interact with parties, counsel, witnesses, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings. • Understand that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses or at any other time, absolutely are prohibited. • During hearings, disclose the identities of witnesses anticipated to be called and cooperate in sharing with counsel evidence to be proffered. • Abstain from conduct calculated to detract or divert the judge's attention from the relevant facts or otherwise cause the fact finder to reach a decision on an impermissible basis. Do not knowingly misstate, distort, or improperly exaggerate any fact or opinion nor mislead anyone. • A question should not be interrupted unless there is a reasonable ground to believe that information is being included that should not be disclosed to the judge. • When the judge makes a ruling do not seek to circumvent the effect of that ruling unless the evidence before the judge is tainted. Ask to approach and if granted show the judge the discrepancy. This allows your state attorney to make a record for later proceedings of the ground for urging the admissibility of the evidence in question and does not preclude efforts by the state attorney to have the evidence admitted through other, proper means. • Please abstain from all acts, comments, and attitudes calculated to curry favor with any party, by fawning, flattery, actual or pretended solicitude, or the like.

12. Appearance / Behavior • PROBATION OFFICER CONDUCT AND COURTROOM DECORUM • A Probation Officer always should interact with parties, counsel, witnesses, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings. • Understand that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses or at any other time, absolutely are prohibited. • During hearings, disclose the identities of witnesses anticipated to be called and cooperate in sharing with counsel evidence to be proffered. • Abstain from conduct calculated to detract or divert the judge's attention from the relevant facts or otherwise cause the fact finder to reach a decision on an impermissible basis. Do not knowingly misstate, distort, or improperly exaggerate any fact or opinion nor mislead anyone. • A question should not be interrupted unless there is a reasonable ground to believe that information is being included that should not be disclosed to the judge. • When the judge makes a ruling do not seek to circumvent the effect of that ruling unless the evidence before the judge is tainted. Ask to approach and if granted show the judge the discrepancy. This allows your state attorney to make a record for later proceedings of the ground for urging the admissibility of the evidence in question and does not preclude efforts by the state attorney to have the evidence admitted through other, proper means. • Please abstain from all acts, comments, and attitudes calculated to curry favor with any party, by fawning, flattery, actual or pretended solicitude, or the like. • Never attempt to place before a judge evidence known to be clearly inadmissible, nor make any remarks or statements intended improperly to influence the outcome of any case.

13. Appearance / Behavior • PROBATION OFFICER CONDUCT AND COURTROOM DECORUM • A Probation Officer always should interact with parties, counsel, witnesses, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings. • Understand that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses or at any other time, absolutely are prohibited. • During hearings, disclose the identities of witnesses anticipated to be called and cooperate in sharing with counsel evidence to be proffered. • Abstain from conduct calculated to detract or divert the judge's attention from the relevant facts or otherwise cause the fact finder to reach a decision on an impermissible basis. Do not knowingly misstate, distort, or improperly exaggerate any fact or opinion nor mislead anyone. • A question should not be interrupted unless there is a reasonable ground to believe that information is being included that should not be disclosed to the judge. • When the judge makes a ruling do not seek to circumvent the effect of that ruling unless the evidence before the judge is tainted. Ask to approach and if granted show the judge the discrepancy. This allows your state attorney to make a record for later proceedings of the ground for urging the admissibility of the evidence in question and does not preclude efforts by the state attorney to have the evidence admitted through other, proper means. • Please abstain from all acts, comments, and attitudes calculated to curry favor with any party, by fawning, flattery, actual or pretended solicitude, or the like. • Never attempt to place before a judge evidence known to be clearly inadmissible, nor make any remarks or statements intended improperly to influence the outcome of any case. • [Taken from: Fl. Bar Revised Rules of Attorney Conduct: 12-22-2015]

14. Appearance / Side Note • No-No's of Courtroom Decorum – (By: J. Russell Collins, October 8, 2015) • Courtroom decorum takes over where your mother left off, and creates an environment where tough situations can be debated without distraction.  Sometimes you need that serious atmosphere to move forward through a difficult legal problem.  In keeping with that courtroom decorum, certain items, behavior, and wardrobe choices should be left at home or secured elsewhere.   • No-No Items  • Court is not a good place to have a FaceTime conversation with your brother...but that is another story.  Turn your ringer off or leave your cell phone or electronic device in the car.   • Also do not bring your guns, knives, scissors, and other weaponry.   • No-No Behavior  • Do not come to court just to talk non-stop with those sitting around you.  Take your conversation outside if you have to talk.   • Do not verbally or non-verbally communicate with prisoners in custody.   • Limit your comings and goings in and out of the courtroom.   • Eat, sleep, and chew gum elsewhere.   • No-No Wardrobe Choices: Even if it is Dolce & Gabbana, shorts, tee shirts, and flip-flops are not permitted.

15. Values of Conduct Can you define your values? When you define your personal values, you discover what's truly important to you. A good way of starting to do this is to look back on your life – to identify when you felt really good, and really confident that you were making good choices. What, in general, values are. Values are the things that you believe are important in the way you live and work. They (should) determine your priorities, and, they're the measure you use to tell if your life is turning out the way you want it to. When the things that you do and the way you behave match your values, life is usually good – you're satisfied and content. But when these don't align with your personal values, that's when things feel out of place. This can be a real problem in dealing with others. This is why making a conscious effort to identify your values is so important.

16. The five values that I have identified through my life experience and that I look for in others are: Commitment Competence Confidence Courage Candor

17. Commitment to Duty A promise to do or give something. A promise to be loyal to someone or something. The attitude of someone who works very hard to do or support something. Do your duty in all things, you cannot do more.

18. Confidence Have Confidence in yourself, a feeling or belief: That you can do something well or succeed at something; That someone or something is good or has the ability to succeed at something; Of being certain that something will happen or that something is true.

19. Courage The quality of mind or spirit that enables a person to face difficulty, danger, physical pain, hardship, death or threat of death, without fear; known as “bravery”. Moral courage is the ability to act rightly in the face of popular opposition, shame, scandal, discouragement, or personal loss. A probation officer should have the courage of one's convictions, to act in accordance with one's beliefs, especially in spite of criticism.

20. Candor The quality of being open: Straightforward, and Impartial.

21. Straightforward Blunt Direct Forthright Frank Genuine Guileless Honest Ingenuous Open Reliable Sincere Unaffected Upright

22. Impartial Detached Disinterested Dispassionate Equitable Even-handed Fair Just Neutral Nonpartisan Probity Unbiased Unprejudiced

23. WARRANTLESS VIOLATION OF PROBATION ARRESTS Common ways to violate probation: Law violations and Technical violations New criminal charge(s) Absconding – failure to notify probation of whereabouts Failure to report to probation officer Failure to complete treatment or classes Failure to pay fines and court fees Failed urine test

24. WARRANTLESS VIOLATION OF PROBATION ARRESTS Common ways to violate probation: Law violations and Technical violations New criminal charge(s) Absconding – failure to notify probation of whereabouts Failure to report to probation officer Failure to complete treatment or classes Failure to pay fines and court fees Failed urine test Preferred procedure for officers is to obtain an arrest warrant to take suspect into custody. However, the enforcement official can arrest a suspected probation violator without a warrant, provided certain conditions are met.

25. WARRANTLESS VIOLATION OF PROBATION ARRESTS • Common ways to violate probation: • Law violations and Technical violations • New criminal charge(s) • Absconding – failure to notify probation of whereabouts • Failure to report to probation officer • Failure to complete treatment or classes • Failure to pay fines and court fees • Failed urine test • Preferred procedure for officers is to obtain an arrest warrant to take suspect into custody. However, the enforcement official can arrest a suspected probation violator without a warrant, provided certain conditions are met. • Namely, the law / enforcement officer: • Knows the suspect is on probation or community supervision. • Has reasonable grounds to believe the suspect is in violation of that probation.

26. WARRANTLESS VIOLATION OF PROBATION ARRESTS • Common ways to violate probation: • Law violations and Technical violations • New criminal charge(s) • Absconding – failure to notify probation of whereabouts • Failure to report to probation officer • Failure to complete treatment or classes • Failure to pay fines and court fees • Failed urine test • Preferred procedure for officers is to obtain an arrest warrant to take suspect into custody. However, the enforcement official can arrest a suspected probation violator without a warrant, provided certain conditions are met. • Namely, the law / enforcement officer: • Knows the suspect is on probation or community supervision. • Has reasonable grounds to believe the suspect is in violation of that probation. • If these conditions are met, an officer does not need a warrant, but can arrest the suspect immediately upon apprehending the suspect. The officer then swears to the circumstances on the booking sheet for arrest and the accused then goes before the court and the first appearance judge.

27. Widman Warrant Officer Andrew Widman Act: Officer shot and killed during encounter with individual who had a warrant issued for violation of parole. Signed into law by Governor Scott in May 2011. At first appearance for a new law violation while already on probation the Judge may issue a Widman Act Warrant for the arrest of the person in violation of their probation. At First Appearance the judge shall inform the defendant that it appears they have committed a violation of their terms of probation. The first appearance judge may set bond and order their appearance at arraignment for VOP in the original sentencing court Or Hold without bond for the original sentencing court to deal with as a VOP.

28. IN THE COUNTY/CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CRIMINAL ACTION STATE OF FLORIDA, CASE NO. _____________________ Plaintiff, Out of Collier County Case No. _______________ vs. HT: ___'___" WT: _____lbs. _____________________, EYES: _____ Defendant. HAIR: _____ ______________________________/ DL: _____________________ Last 4 digits SSN: _____ RACE: _____ GENDER: _____ SCARS/MARKS: _______________ DOB: _______________ WARRANT ISSUED BY FIRST APPEARANCE JUDGE PURSUANT TO §948.06(1)(c) FLA. STAT. (2011) “WIDMAN ACT”

29. TO ALL AND SINGULAR SHERIFFS OF THE STATE OF FLORIDA, This is to command you to take _____________________ into custody and her/him safely keep, so that you have her/his body before one of the Judges of Collier County, at and for First Appearance INSTANTER, in Naples, Florida. On this date, the above identified individual appeared before the undersigned judge, who finds reasonable grounds to believe that ____________________________ is a probationer or an offender who has violated his or her probation or community control in a material respect by committing the new offenses of: ____________________________________________________________________________________________. DONE AND ORDERED in Chambers in Naples, Collier County, Florida this _____ day of _____________, 20___. __________________________________ J.M. McGARITY III CIRCUIT/COUNTY JUDGE

30. 20TH JUDICIAL CIRCUIT RETURN Received this warrant on the ___________day of _______________, 20____, and executed the same by arresting one _____________________, the within named defendant, in the Circuit/ County Court of Collier County, Florida on the ______day of ________________, 2016. ______________________________________ Sheriff, Collier County, Florida ______________________________________ Deputy Sheriff

31. MILTON MOBLEY, Appellant, v. STATE OF FLORIDA, Appellee. Nos. 4D14-3673 and 4D14-3818 (April 13, 2016) “Appellant’s probation ended on September 7, 2012 – twenty days before its purported extension. Without that extension, Appellant was not on probation when his probation was purportedly revoked and his incarceration sentence imposed. We therefore reverse and remand for the proceedings against Appellant to be dismissed.” Reversed.

32. Tolling Probation (FL Stat. §948.06(1) Provides for retention of jurisdiction of a term of probation that expires during the course of a probation revocation proceeding. That: Upon filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under §901.02, The probationary period is tolled until the court enters a ruling on the violation. This means that once a legally valid violation proceeding is initiated, the defendant’s term of probation is “frozen” or “tolled” so that jurisdiction is retained by the court – even after the original probation term contemplated by the sentence expires. Both the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period, and the mere filing of the affidavit is insufficient. With respect to timeliness of allegations filed in amended affidavits, allegations of an affidavit are timely made if: [1] The amended affidavit is filed before the expiration of the probation at issue, or,

33. [2] The allegations in an affidavit filed after expiration of the probationary period have also been alleged in an earlier affidavit timely filed before the expiration of the period of probation. However, a timely affidavit of violation cannot be amended after the expiration of the probationary period to add charges not contained in an earlier, timely filed affidavit.

34. FACC 2016 TRAINING INSTITUTE ANNUAL CONFERENCE PROBATION LAW / JUDICIAL COMMENTS Go All the Way!Take Risks!Be Unique!Have a Ball!Do Some Good!Be safe in what you do!Thank you for being here to listen to me this afternoon. Honorable J.M. McGarity Collier County Judge (239) 252-8747