Probation Law Update and Review- 2012

Probation Law Update and Review- 2012 20th Judicial Circuit

Your Course Objectives 1) Provide an overview and 2011-2012 update of relevant Florida Law for County Court Probation Officers relating to supervision, violations of probation and revocation proceedings. 2) Identify strategies to equip local probation offices to effectively anticipate and respond to emerging mental health and substance abuse issues. (CIT, mental health court, drug court)

Probation Basics…… Revisited • “Probation” is a form of community supervision, with rehabilitation, rather than punishment, as its underlying purpose. Landeverde v. St. 769 So.2d 457 (Fla. 4th DCA 2000).

VOP BASICS………. 1-2-3…… • What condition was violated??? • Does your affidavit specifically (and correctly) identify the condition and describe the violation?? • Was the violation WILLFUL & SUBSTANTIAL?????

Why the basics are important • Probation cannot be revoked for one reason when affidavit of violation states another. Mack v. State, App. 2 Dist., 342 So.2d 562 (1977). • Decided 35 years ago…… still good law!

5, 7 or both…? Probationer tests positive for cocaine… P.O. files affidavit alleging violation of Condition #7 (use of intoxicants to excess). VOP hearing proceeds Judge finds willful violation. Ok??? NO…. Should have been alleged as CONDITION 5 One time use of cocaine alone insufficient for “excessive use” but IS a condition 5 violation…. Because…

USE COCAINE, VIOLATE THE LAW • VIOLATE THE LAW, VIOLATE CONDITION 5 See McGathey v. State: 71 So.3d 244 Fla. 2nd DCA 2011

“I need more time……” • Generally, a trial court has authority to modify or rescind the terms or conditions of probation it imposes; however, the constitutional guarantees of due process and protection from double jeopardy prohibit a trial court from revoking or enhancing probation without first determining the probationer violated probation. J.D.D. v. State, App. 1 Dist., 12 So.3d 820 (2009).

Important Restitution Update Davalle v. State--- Florida Supreme Court Update…from 2009 presentation… • In probation revocation proceedings in which the violation alleged is a failure to pay a monetary obligation as a condition of the probation, the State must present evidence on the probationer's ability to pay and………

Restitution Update (continued) • once the State has done so, it is constitutional under due process principles to then shift the burden to the probationer to prove inability to pay to essentially rebut the State's evidence of willfulness, but …………. • the statute requiring a probationer to prove inability to pay by the heightened standard of clear and convincing evidence is unconstitutional under due process principles, • ;

2012 Restitution Update (cont) • because the heightened standard of proof requires the probationer to bear a greater risk of an erroneous decision resulting in imprisonment for debt, despite an explicit protection in the state Constitution against imprisonment for debt. Del Valle v. State, 80 So.3d 999 (2011), rehearing denied. • TRANSLATION?

Before defendant's probation may be revoked, he must have been put on notice as to what he must do or cannot do as special conditions of the probation; such concept of notice to defendant is an essential element of “due process.” Morgan v. State, App. 2 Dist., 341 So.2d 201 (1976). Sentencing And Punishment 1917

Translation??? • Restitution? 1) Was it required? 2) how much was owed? 3) how much was paid? 4) Ability Probationer has to pay? BURDEN SHIFTS TO DEFENDANT To prove inability to pay but no longer by clear and convincing……

THE ESSENTIALS……… • RULE #1: Hearsay is admissible at a VOP HEARING and can sustain a violation IF IT IS CORROBORATED BY DIRECT EVIDENCE.

PART II: THE ESSENTIALS……… RULE #2: THE BURDEN OF PROOF AT A VOP HEARING IS LOWER THAN A TRIAL ON A NEW LAW VIOLATION. “GREATER WEIGHT OF EVIDENCE”

PART II: THE ESSENTIALS……… • RULE #3: Travel Requests are addressed through THE OFFICER and NOT the Court.

EMERGING TRENDS • CIT • MENTAL HEALTH ISSUES • SPECIALTY COURTS • VETERANS & • COMMUNITY • RESOURCES……

You make a differenceThank You!!! Judge Janeice Martin

Probation Law Update and Review- 2012