PROBATION LAW

1. So you can teach your judges and lawyers… By the Honorable Janeice T. Martin County Court Judge, Collier County, FL (239) 252-6846 jmartin@ca.cjis20.org PROBATION LAW

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

3. INTRO • Who are you and why does this matter anyway? • Important disclaimer…

4. ORIGINAL SENTENCING • SOME CHARGES REQUIRE PROBATION • DUI • DV BATTERY • OTHERS?

5. 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?

6. ORIGINAL SENTENCING • What about terms that have several providers – can I choose? • What if the DL was revoked – should I seize & surrender it?

7. 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?

8. ORIGINAL SENTENCING • What about (ugh) the Interstate Compact? • Can’t we just sentence around it? • What about mail vs. transfer?

9. 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?

10. SUPERVISION • Document, document, document!! • Do so at or near the time of the event you are documenting

11. 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

12. SUPERVISION • Is drug/alcohol testing a general term or specific? • Is “no alcohol” general or specific?

13. 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?

14. SEARCH & SEIZURE • Is this a general term, or a specific term? • Neither?

15. 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

16. 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.

17. 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?

18. SEARCH & SEIZURE • What if instead Defendant Jones is on probation with you for Possession of Marijuana? • Does this make a difference?

19. 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?

20. 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

21. 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

22. 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?

23. 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?

24. 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?

25. 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

26. 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?

27. 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

28. 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?

29. 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?

30. 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!

31. 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?

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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…

38. 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

39. 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

40. 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

41. QUESTIONS???