VIOLATION OF PROBATION
Lawson v. State, 5D19-3386 (Fla. 5th DCA 2020) All the conditions of §948.06(2)(f) must be met for the Court to be limited to 90 days in jail for a violation of probation. The doctrines of in pari materia and the absurdity doctrine trump the plain language of the statute.
Brown v. State, 1D20-266 (Fla. 1st DCA 2020) limits court to modifying or continuing probation or imposing a sentence of up to 90 days in county jail only when a defendant meets all four conditions of the statute.
Edwards v. State, 2D19-2734 (Fla 2nd DCA 2020) Defendant’s failure to come to the open door at 5:30 a.m. does not establish that he was away from the house at that time. Failure to answer the door at a time when the average person is typically sleeping does not establish the person’s absence. The approach of simply knocking on the door and then declaring a violation when no one answers provides strong potential defenses to the person being supervised.
Shields v. State, 2D19-493 (Fla 2nd DCA 2020) Upon violation of probation, where Defendant scores under 22 points, Court may not sentence the Defendant to prison absenta jury finding of dangerousness
Hill V. State, 1D18-1355 (Fla 1st DCA January 21, 2020). Bare allegation that the Defendant was engaged in criminal activity in a particular residence insufficiently charges a violation of Condition Six.
Aguirre v. State, 207 So.3d 244 (Fla. 4th DCA 2016) Subsequent nolle prose for underlying new offense warranted consideration of post-plea evidence in post-conviction relief proceeding alleging voluntariness of defendant’s guilty plea to probation violation stemming from alleged commission of new offense. After defendant pleaded guilty to probation violation state entered nolle prose for burglary charge that was basis of probation violation after trial court granted defendant’s motion to suppress.
Allen v. State, 211 So.3d 55 (Fla. 4th DCA 2017) Evidence was insufficient to establish defendant violated his probation by changing his address without informing his probation officer. When probation officer first arrived at defendant’s home no one answered the door, on officer’s second visit she was stopped by a locked gate and she noticed a real estate agent’s lock on the door, officer did not testify that the home was vacant, and she did not call the owner who rented the home to the defendant.
Charles v. State, 209 So.3d 32 (Fla. 4th DCA 2016) Trial court abused its discretion in finding that probationer’s violation was willful so as to trigger revocation of probation, where probationer attempted to attend her scheduled rehabilitation sessions but was turned away and discharged from her treatment program due to her child care issues. Probation revocation based on the failure to complete a rehabilitation program must be shown to be the probationer’s fault. If a probationer makes reasonable efforts to comply with rehabilitation program, his failure will not be considered willful so as to trigger revocation of probation. State failed to present any evidence that probationer became homeless due to any intentional conduct, and thus, her violation of probation was not willful so as to trigger revocation of probation.
Goers v. State, 2D15-338 (Fla. 2nd DCA 2016) The State failed to prove that the probationer willfully violated a substantial condition of his probation based on the following: “Goers was initially sentenced to five years’ probation. Shortly thereafter, the State filed an affidavit alleging that Goers violated condition three, which required that he “not change [his] residence . . . without first procuring the consent of [his] officer,” and condition nine, which required that he comply with all instructions given by his probation officer. At the subsequent violation hearing, the State put on evidence that Goers changed the address on his driver’s license without the prior permission of his probation officer. It was undisputed that Goers did not move to the new address nor did he intend to move until after it had been approved by his probation officer and that he received approval of the new address from the sheriff’s office prior to changing his license.
State v. Quieor, SC15-367 (Fla. 2016) A probation officer’s testimony that the probationer failed a field drug test personally administered by the officer is competent, nonhearsay evidence of a probation violation.
Villenueva v. State, 2D15-1422 (Fla. 2nd DCA 2016) The Fourth Amendment exception that allows a probation officer to search a probationer’s home or workplace to the extent necessary for proper supervision of the probationer does not extend to law enforcement officers. Accordingly, a defendent does not voluntarily consent to a search of his person and vehicle by a law enforcement officer (LEO) where he believes he cannot refuse the search because he is on probation and the officer retains his drivers license when requesting permission to search.
Williams v. State, 2D14-5500 (Fla. 2nd DCA 2016) Where there is no showing that consumption of alcohol contributed to the offense, the trial court reversibly errs by ordering the defendant to refrain from consuming alcohol while on probation.
Bell v. State, 5D14-1569 (Fla. 5th DCA 2015) A probation officer’s testimony regarding a positive result of field drug test that the officer personally conducted, along with hearsay evidence from positive laboratory test on same urine sample, constitutes substantial competent evidence sufficient to support a finding that the defendant violated probation by possessing illicit drugs. CONFLICT CERTIFIED Queior v. State, 157 So. 3d 370, 373 (Fla. 2d DCA 2015), rev. granted, No. SC15-367, 2015 WL 1894002 (Fla. April 14, 2015) and Dawson v. State (below), 40 Fla. L. Weekly D1683 (Fla. 1st DCA July 21, 2015).
Thompson v. State, 3D13-2337 (Fla. 3nd DCA 2015) A trial court errs by revoking probation based on constructive possession of a knife found in his room: “The knife was found in the defendant’s dormitory room, but it was not in plain view. It was located in the recessed area under the drawer used by the defendant which could be accessed only by removing the drawer from its tracks. At the time the knife was discovered, the defendant was the only occupant of the room. The dormitory room could house six residents, however, and at one point had five occupants, including the defendant. Moreover, the room did not have a lock and could be entered by other residents living in other rooms. The drawer also did not have a lock. No evidence of fingerprints on the knife was entered into evidence. Among other defects, these facts do not establish that the defendant had knowledge of the knife. … Because constructive possession was not established, the trial court erred in using the possession of the knife as a basis for revoking the defendant’s probation.”
Dawson v. State, 1D14-4630 (Fla. 1st DCA 2015) After the State petitioned to revoke the defendant’s probation on the grounds she violated the terms of probation for using cocaine, the only evidence presented by the State to prove the violation was the probation officer’s testimony that she conducted a urinalysis at her office that indicated appellant used cocaine, and then she sent a urine sample to a laboratory which issued a report indicating the urine tested positive for cocaine. Reversing, the First District held that laboratory test reports not testified to by an expert are HEARSAY.
Harrell v. State, 162 So.3d 1128 (Fla. 4th DCA 2015) A warrantless search of a probationer’s home by his probation officer is reasonable and is not dependent on the existence of an express search condition in a probation order. Extending a probation officer’s general authority to conduct a warrantless search of a probationer to a law enforcement officer is not permissible under the Fourth Amendment. However, police can come with probation officer for safety purposes when probation officer conducts the search.
Williams v. State, 163 So.3d 1257 (Fla. 1st DCA 2015) Where the state seeks to establish a violation of probation based upon a defendant associating with persons engaged in criminal activities, there must be evidence that the defendant was aware those he was associating with were engaged in criminal activity.
Aviles v. State, 165 So.3d 841 (Fla. 1st DCA 2015) A probation officer has no authority to impose additional conditions of probation, even if the court has ordered the probationer to follow all instructions the officer may give. Trial court could not require defendant to maintain full time employment without exception as condition of probation and therefore court could not subsequently revoke probation for failure to comply with requirement. Factors out of the defendant’s control could have prevented completion of this requirement. Defendant’s submission of job search logs was not imposed as a condition of his probation and therefore trial court could not revoke probation for failing to submit logs as ordered by probation officer. Trial court failed to make finding concerning whether defendant was able to pay court costs, restitution, and drug testing costs and therefore trial court was not permitted to revoke defendant’s probation for failing to pay costs.
Thomas v. State, 159 So.3d 937 (Fla. 3rd DCA 2015) Trial court could not revoke defendant’s probation due to defendant’s failure to complete community service hours pursuant to the terms of a plea agreement, where failure to complete community service hours was not alleged as a basis for revocation in the affidavit of violation of probation, and defendant’s failure to complete the hours was not willful, as he was unable to complete the hours due to his incarceration on unrelated charges.
Pulecio v. State, 160 So.3d 556 (Fla. 2nd DCA 2015) A probation condition is invalid if it: (1) has no relationship to the crime of which the offender was convicted; (2) relates to conduct which is not itself criminal; and (3) requires or forbids conduct which is not reasonably related to future criminality. All three factors for determining if a probation condition is invalid as related to rehabilitation must exist for an appellate court to strike a special probation condition as an abuse of discretion. However, a special condition of probation will be upheld if one of the factors outlined in Rodriguez exists. Special condition of drug trafficking defendant’s probation which stated that self-employment does not satisfy the employment requirement of his probation was not reasonably related to rehabilitation and thus would be stricken, despite contention that state had difficulty monitoring defendant in the past. Monitoring difficulties were not a factor to be considered in determining the validity of the condition, and requiring defendant to seek additional employment in addition to self-employment, which condition did not forbid, was not reasonably related to future criminality.
VIOLATION OF PROBATION – ABILITY TO PAY
Banks v. State, 262 So.3d 876 (Fla. 1st DCA 2019) Probation could not be revoked for probationer’s failure to perform community service, where community service was a permitted alternative to probationer paying court costs, but probation order did not obligate her to perform community service, and the trial court had not made a determination of probationer’s ability to pay court costs. Orders of probation indicated that defendant “may perform community service hours in lieu of court costs.” As such, court needed to determine ability to pay the court costs before revoking probation.
VIOLATION OF PROBATION – ADMISSION
Hanania v. State, 264 So.3d 317 (Fla. 2nd DCA 2019) A probationer’s admissions against interest, may, as a matter of law, be sufficient to revoke his probation even where there is no independent evidence of the corpus delicti of the crime.
VIOLATION OF PROBATION – OUT OF PLACE
Archie v. State, 264 So.3d 276 (Fla. 5th DCA 2019) Evidence was insufficient to support trial court’s finding that probationer willfully and substantially violated his probation by leaving his residential county. Probationer’s GPS device that tracked his location did not have the alert function enabled that would have notified him when he left the county. He was not questioned about his knowledge of county borders, and no evidence was presented indicating there was county signage that would have alerted him that he was leaving residential county and traveling into neighboring county.
VIOLATION OF PROBATION – AFFIDAVIT
McKinnon v. State, 263 So.3d 821 (Fla. 5th DCA 2019) Allegations that are not mentioned or required in the condition of probation cannot form the basis of a violation of probation. Probationer’s failure to report for appointment at probation office was not a violation of probation condition that he notify and obtain consent of probation officer for a change in residence. The violation condition must match the probationary orders.
VIOLATION OF PROBATION
Lawson v. State, 5D19-3386 (Fla. 5th DCA 2020) All the conditions of §948.06(2)(f) must be met for the Court to be limited to 90 days in jail for a violation of probation. The doctrines of in pari materia and the absurdity doctrine trump the plain language of the statute.
Brown v. State, 1D20-266 (Fla. 1st DCA 2020) limits court to modifying or continuing probation or imposing a sentence of up to 90 days in county jail only when a defendant meets all four conditions of the statute.
Edwards v. State, 2D19-2734 (Fla 2nd DCA 2020) Defendant’s failure to come to the open door at 5:30 a.m. does not establish that he was away from the house at that time. Failure to answer the door at a time when the average person is typically sleeping does not establish the person’s absence. The approach of simply knocking on the door and then declaring a violation when no one answers provides strong potential defenses to the person being supervised.
Shields v. State, 2D19-493 (Fla 2nd DCA 2020) Upon violation of probation, where Defendant scores under 22 points, Court may not sentence the Defendant to prison absenta jury finding of dangerousness
Hill V. State, 1D18-1355 (Fla 1st DCA January 21, 2020). Bare allegation that the Defendant was engaged in criminal activity in a particular residence insufficiently charges a violation of Condition Six.
Aguirre v. State, 207 So.3d 244 (Fla. 4th DCA 2016) Subsequent nolle prose for underlying new offense warranted consideration of post-plea evidence in post-conviction relief proceeding alleging voluntariness of defendant’s guilty plea to probation violation stemming from alleged commission of new offense. After defendant pleaded guilty to probation violation state entered nolle prose for burglary charge that was basis of probation violation after trial court granted defendant’s motion to suppress.
Allen v. State, 211 So.3d 55 (Fla. 4th DCA 2017) Evidence was insufficient to establish defendant violated his probation by changing his address without informing his probation officer. When probation officer first arrived at defendant’s home no one answered the door, on officer’s second visit she was stopped by a locked gate and she noticed a real estate agent’s lock on the door, officer did not testify that the home was vacant, and she did not call the owner who rented the home to the defendant.
Charles v. State, 209 So.3d 32 (Fla. 4th DCA 2016) Trial court abused its discretion in finding that probationer’s violation was willful so as to trigger revocation of probation, where probationer attempted to attend her scheduled rehabilitation sessions but was turned away and discharged from her treatment program due to her child care issues. Probation revocation based on the failure to complete a rehabilitation program must be shown to be the probationer’s fault. If a probationer makes reasonable efforts to comply with rehabilitation program, his failure will not be considered willful so as to trigger revocation of probation. State failed to present any evidence that probationer became homeless due to any intentional conduct, and thus, her violation of probation was not willful so as to trigger revocation of probation.
Goers v. State, 2D15-338 (Fla. 2nd DCA 2016) The State failed to prove that the probationer willfully violated a substantial condition of his probation based on the following: “Goers was initially sentenced to five years’ probation. Shortly thereafter, the State filed an affidavit alleging that Goers violated condition three, which required that he “not change [his] residence . . . without first procuring the consent of [his] officer,” and condition nine, which required that he comply with all instructions given by his probation officer. At the subsequent violation hearing, the State put on evidence that Goers changed the address on his driver’s license without the prior permission of his probation officer. It was undisputed that Goers did not move to the new address nor did he intend to move until after it had been approved by his probation officer and that he received approval of the new address from the sheriff’s office prior to changing his license.
State v. Quieor, SC15-367 (Fla. 2016) A probation officer’s testimony that the probationer failed a field drug test personally administered by the officer is competent, nonhearsay evidence of a probation violation.
Villenueva v. State, 2D15-1422 (Fla. 2nd DCA 2016) The Fourth Amendment exception that allows a probation officer to search a probationer’s home or workplace to the extent necessary for proper supervision of the probationer does not extend to law enforcement officers. Accordingly, a defendent does not voluntarily consent to a search of his person and vehicle by a law enforcement officer (LEO) where he believes he cannot refuse the search because he is on probation and the officer retains his drivers license when requesting permission to search.
Williams v. State, 2D14-5500 (Fla. 2nd DCA 2016) Where there is no showing that consumption of alcohol contributed to the offense, the trial court reversibly errs by ordering the defendant to refrain from consuming alcohol while on probation.
Bell v. State, 5D14-1569 (Fla. 5th DCA 2015) A probation officer’s testimony regarding a positive result of field drug test that the officer personally conducted, along with hearsay evidence from positive laboratory test on same urine sample, constitutes substantial competent evidence sufficient to support a finding that the defendant violated probation by possessing illicit drugs. CONFLICT CERTIFIED Queior v. State, 157 So. 3d 370, 373 (Fla. 2d DCA 2015), rev. granted, No. SC15-367, 2015 WL 1894002 (Fla. April 14, 2015) and Dawson v. State (below), 40 Fla. L. Weekly D1683 (Fla. 1st DCA July 21, 2015).
Thompson v. State, 3D13-2337 (Fla. 3nd DCA 2015) A trial court errs by revoking probation based on constructive possession of a knife found in his room: “The knife was found in the defendant’s dormitory room, but it was not in plain view. It was located in the recessed area under the drawer used by the defendant which could be accessed only by removing the drawer from its tracks. At the time the knife was discovered, the defendant was the only occupant of the room. The dormitory room could house six residents, however, and at one point had five occupants, including the defendant. Moreover, the room did not have a lock and could be entered by other residents living in other rooms. The drawer also did not have a lock. No evidence of fingerprints on the knife was entered into evidence. Among other defects, these facts do not establish that the defendant had knowledge of the knife. … Because constructive possession was not established, the trial court erred in using the possession of the knife as a basis for revoking the defendant’s probation.”
Dawson v. State, 1D14-4630 (Fla. 1st DCA 2015) After the State petitioned to revoke the defendant’s probation on the grounds she violated the terms of probation for using cocaine, the only evidence presented by the State to prove the violation was the probation officer’s testimony that she conducted a urinalysis at her office that indicated appellant used cocaine, and then she sent a urine sample to a laboratory which issued a report indicating the urine tested positive for cocaine. Reversing, the First District held that laboratory test reports not testified to by an expert are HEARSAY.
Harrell v. State, 162 So.3d 1128 (Fla. 4th DCA 2015) A warrantless search of a probationer’s home by his probation officer is reasonable and is not dependent on the existence of an express search condition in a probation order. Extending a probation officer’s general authority to conduct a warrantless search of a probationer to a law enforcement officer is not permissible under the Fourth Amendment. However, police can come with probation officer for safety purposes when probation officer conducts the search.
Williams v. State, 163 So.3d 1257 (Fla. 1st DCA 2015) Where the state seeks to establish a violation of probation based upon a defendant associating with persons engaged in criminal activities, there must be evidence that the defendant was aware those he was associating with were engaged in criminal activity.
Aviles v. State, 165 So.3d 841 (Fla. 1st DCA 2015) A probation officer has no authority to impose additional conditions of probation, even if the court has ordered the probationer to follow all instructions the officer may give. Trial court could not require defendant to maintain full time employment without exception as condition of probation and therefore court could not subsequently revoke probation for failure to comply with requirement. Factors out of the defendant’s control could have prevented completion of this requirement. Defendant’s submission of job search logs was not imposed as a condition of his probation and therefore trial court could not revoke probation for failing to submit logs as ordered by probation officer. Trial court failed to make finding concerning whether defendant was able to pay court costs, restitution, and drug testing costs and therefore trial court was not permitted to revoke defendant’s probation for failing to pay costs.
Thomas v. State, 159 So.3d 937 (Fla. 3rd DCA 2015) Trial court could not revoke defendant’s probation due to defendant’s failure to complete community service hours pursuant to the terms of a plea agreement, where failure to complete community service hours was not alleged as a basis for revocation in the affidavit of violation of probation, and defendant’s failure to complete the hours was not willful, as he was unable to complete the hours due to his incarceration on unrelated charges.
Pulecio v. State, 160 So.3d 556 (Fla. 2nd DCA 2015) A probation condition is invalid if it: (1) has no relationship to the crime of which the offender was convicted; (2) relates to conduct which is not itself criminal; and (3) requires or forbids conduct which is not reasonably related to future criminality. All three factors for determining if a probation condition is invalid as related to rehabilitation must exist for an appellate court to strike a special probation condition as an abuse of discretion. However, a special condition of probation will be upheld if one of the factors outlined in Rodriguez exists. Special condition of drug trafficking defendant’s probation which stated that self-employment does not satisfy the employment requirement of his probation was not reasonably related to rehabilitation and thus would be stricken, despite contention that state had difficulty monitoring defendant in the past. Monitoring difficulties were not a factor to be considered in determining the validity of the condition, and requiring defendant to seek additional employment in addition to self-employment, which condition did not forbid, was not reasonably related to future criminality.
VIOLATION OF PROBATION – ABILITY TO PAY
Banks v. State, 262 So.3d 876 (Fla. 1st DCA 2019) Probation could not be revoked for probationer’s failure to perform community service, where community service was a permitted alternative to probationer paying court costs, but probation order did not obligate her to perform community service, and the trial court had not made a determination of probationer’s ability to pay court costs. Orders of probation indicated that defendant “may perform community service hours in lieu of court costs.” As such, court needed to determine ability to pay the court costs before revoking probation.
VIOLATION OF PROBATION – ADMISSION
Hanania v. State, 264 So.3d 317 (Fla. 2nd DCA 2019) A probationer’s admissions against interest, may, as a matter of law, be sufficient to revoke his probation even where there is no independent evidence of the corpus delicti of the crime.
VIOLATION OF PROBATION – OUT OF PLACE
Archie v. State, 264 So.3d 276 (Fla. 5th DCA 2019) Evidence was insufficient to support trial court’s finding that probationer willfully and substantially violated his probation by leaving his residential county. Probationer’s GPS device that tracked his location did not have the alert function enabled that would have notified him when he left the county. He was not questioned about his knowledge of county borders, and no evidence was presented indicating there was county signage that would have alerted him that he was leaving residential county and traveling into neighboring county.
VIOLATION OF PROBATION – AFFIDAVIT
McKinnon v. State, 263 So.3d 821 (Fla. 5th DCA 2019) Allegations that are not mentioned or required in the condition of probation cannot form the basis of a violation of probation. Probationer’s failure to report for appointment at probation office was not a violation of probation condition that he notify and obtain consent of probation officer for a change in residence. The violation condition must match the probationary orders.
