So you can teach your judges and lawyers… By the Honorable Janeice T. Martin County Court Judge, Collier County, FL (239) PROBATION LAW

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

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

ORIGINAL SENTENCING SOME CHARGES REQUIRE PROBATION SOME CHARGES REQUIRE PROBATION DUI DUI DV BATTERY DV BATTERY OTHERS? OTHERS?

ORIGINAL SENTENCING But what if he’s in jail for a while first? But what if he’s in jail for a while first? What if she’s already served the max in jail? What if she’s already served the max in jail? But what about a subsequent VOP? But what about a subsequent VOP?

ORIGINAL SENTENCING What about terms that have several providers – can I choose? What about terms that have several providers – can I choose? What if the DL was revoked – should I seize & surrender it? What if the DL was revoked – should I seize & surrender it?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? Any limits on what can be ordered as a condition of probation? Can “no alcohol” be a condition on a Worthless Check probation? Can “no alcohol” be a condition on a Worthless Check probation? Why or why not? Why or why not?

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

ORIGINAL SENTENCING What if the judge did it wrong? What if the judge did it wrong? Can I change or add to the sentence in any way? Can I change or add to the sentence in any way? Is timing important, if a mistake is discovered? Is timing important, if a mistake is discovered?

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

SUPERVISION GENERAL VS. SPECIFIC TERMS ( § ): Specific must be pronounced by the judge at sentencing Specific must be pronounced by the judge at sentencing Ex: Complete Anger Management Ex: Complete Anger Management General do not require oral pronouncement General do not require oral pronouncement Ex: Reporting Ex: Reporting

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

SUPERVISION What are the limits on the 5 th Amendment during supervision? What are the limits on the 5 th Amendment during supervision? Can they refuse to answer your questions regarding compliance with probation? 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? 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? 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? Is this a general term, or a specific term? Neither? Neither?

SEARCH & SEIZURE What are limits of probation’s warrantless search powers? What are limits of probation’s warrantless search powers? Require probable cause first? More? Less? Require probable cause first? More? Less? Where can you look? Where can you look? Can new charges be prosecuted based on what you find? Ex: cocaine in a drawer 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. 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 you go visit Defendant Jones? Can Detective Smith come with you? Can Detective Smith come with you? What can you do once you get there? What can you do once you get there? What can Detective Smith do? What can Detective Smith do?

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

SEARCH & SEIZURE Does the obligation to live without violating the law blow this wide open? 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? 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. 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 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. 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: 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 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 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. 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 you direct them to have a psychiatric evaluation? Can the judge do so? Can the judge do so? Why or why not? Why or why not? Can you remove terms? Can the judge? 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? 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? 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? 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? 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? What if the defendant is on board, and doesn’t object?

JURISDICTION Tips to avoid problems: 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 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 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 Ex: Enroll in Shoplifting Class within first 30 days of probation

JURISDICTION What if there is a VOP? 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? 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? Why or why not?

JURISDICTION Section (1)(f) provides for tolling of the period of probation once an Affidavit has been filed and Warrant issued Section (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 Tolled until Judge rules on the VOP If found not guilty, then D gets credit for all tolled time 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 Courts have interpreted this to allow amended VOP for new crimes during toll period

JURISDICTION Is there a constitutional problem here? Is there a constitutional problem here? Defendant could be exposed to violation for a period well beyond the statutory maximum 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 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? 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? Another question: what if the Defendant was in jail when he was sentenced? When does your jurisdiction (probation) begin? When does your jurisdiction (probation) begin? What if he’s in jail on some other charge for the whole period of your probation? 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? What triggers the VOP – the Affidavit or the Warrant? Which is necessary in order to maintain jurisdiction to prosecute the VOP? Which is necessary in order to maintain jurisdiction to prosecute the VOP? Widman Act Warrant – still need an Affidavit, but don’t duplicate warrant Widman Act Warrant – still need an Affidavit, but don’t duplicate warrant Sidebar: must be SWORN – notary must give oath and witness signature! Sidebar: must be SWORN – notary must give oath and witness signature!

WARRANTS What should the warrant include? 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? 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? 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 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 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 Because standard is willful and substantial, you may need more than one basis Ex: Condition 5 & 7 for a single failed u/a Ex: Condition 5 & 7 for a single failed u/a

PROVING YOUR CASE Burden is “preponderance” or “greater weight of the evidence” Burden is “preponderance” or “greater weight of the evidence” Tip the scales Tip the scales Less than burden for new charge – beyond a reasonable doubt 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 Thus can suffer VOP even if win trial on the new charge that triggered the VOP Violation must be willful and substantial Violation must be willful and substantial

PROVING YOUR CASE No right against self-incrimination No right against self-incrimination But D testimony cannot be used in separate criminal prosecution But D testimony cannot be used in separate criminal prosecution Hearsay is admissible Hearsay is admissible But cannot be sole evidence of violation But cannot be sole evidence of violation Lab reports can be admitted as biz records, but likely cannot be sole evidence 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 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 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 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 allegations have been put in Affidavit Be sure all supporting documents, reports, witnesses & other evidence have been provided to the State Be sure all supporting documents, reports, witnesses & other evidence have been provided to the State Be sure your file is complete Be sure your file is complete Dress appropriately Dress appropriately Speak clearly & maintain objectivity Speak clearly & maintain objectivity

PROVING YOUR CASE With regard to financial violations: 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 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 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… Understand that sometimes we just can’t get blood from a stone…

SENTENCING THE VOP GLOSSARY: GLOSSARY: Continue (same as reinstate) – puts D back on original track and terms 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) 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 Terminate – ends obligation to court Dismiss – puts D back in position pre-warrant – D gets credit for tolled time – may effectively yield termination Dismiss – puts D back in position pre-warrant – D gets credit for tolled time – may effectively yield termination

SENTENCING THE VOP GLOSSARY (CONT’D) GLOSSARY (CONT’D) Modify: requires an admission to VOP or a finding by court of VOP Modify: requires an admission to VOP or a finding by court of VOP REQUIRES AN ORDER – NOT A JUDGMENT! REQUIRES AN ORDER – NOT A JUDGMENT! This is NOT a re-sentencing This is NOT a re-sentencing Original terms remain, and only those specifically enumerated get changed Original terms remain, and only those specifically enumerated get changed Typically used to maintain a withheld adjudication Typically used to maintain a withheld adjudication Because there was a VOP, can enhance/add terms to original sentence 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 Court can revoke probation that hasn’t even started yet Ex: consecutive terms with VOP in 1 st term Ex: consecutive terms with VOP in 1 st term Court can ignore CPC if modifying or continuing Court can ignore CPC if modifying or continuing It’s only a sentencing if probation is revoked It’s only a sentencing if probation is revoked Then CPC applies and must be followed Then CPC applies and must be followed

QUESTIONS???