PROBATION LAW
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
OUTLINE
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Intro
Original Sentencing
Supervision
Search & Seizure
Jurisdiction
Warrants
Proving your case
Sentencing on the Violation
Q&A
INTRO
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Who are you and why does this matter
anyway?
Important disclaimer…
ORIGINAL SENTENCING
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SOME CHARGES REQUIRE PROBATION
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DUI
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DV BATTERY
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OTHERS?
ORIGINAL SENTENCING
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But what if he’s in jail for a while first?
What if she’s already served the max in
jail?
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But what about a subsequent VOP?
ORIGINAL SENTENCING
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What about terms that have several
providers – can I choose?
What if the DL was revoked – should I
seize & surrender it?
ORIGINAL SENTENCING
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Any limits on what can be ordered as a
condition of probation?
Can “no alcohol” be a condition on a
Worthless Check probation?
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Why or why not?
ORIGINAL SENTENCING
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What about (ugh) the Interstate Compact?
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Can’t we just sentence around it?
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What about mail vs. transfer?
ORIGINAL SENTENCING
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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?
SUPERVISION
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Document, document, document!!
Do so at or near the time of the event you
are documenting
SUPERVISION
GENERAL VS. SPECIFIC TERMS (§948.03):
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Specific must be pronounced by the judge
at sentencing
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Ex: Complete Anger Management
General do not require oral
pronouncement
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Ex: Reporting
SUPERVISION
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Is drug/alcohol testing a general term or
specific?
Is “no alcohol” general or specific?
SUPERVISION
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What are the limits on the 5th Amendment
during supervision?
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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?
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What if they’ve already pled, so it can no longer be
prosecuted separately?
SEARCH & SEIZURE
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Is this a general term, or a specific term?
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Neither?
SEARCH & SEIZURE
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What are limits of probation’s warrantless
search powers?
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Require probable cause first? More? Less?
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Where can you look?
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Can new charges be prosecuted based on
what you find? Ex: cocaine in a drawer
SEARCH & SEIZURE
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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
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Can you go visit Defendant Jones?
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Can Detective Smith come with you?
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What can you do once you get there?
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What can Detective Smith do?
SEARCH & SEIZURE
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What if instead Defendant Jones is on
probation with you for Possession of
Marijuana?
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Does this make a difference?
SEARCH & SEIZURE
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Does the obligation to live without
violating the law blow this wide open?
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Ex: Can you go through his bank records to
look for evidence of fraud?
JURISDICTION
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Basic Rule: You have jurisdiction to
enforce the terms of the sentence for the
entire term of probation.
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Ex: Sentence of 6 month probation gives
jurisdiction for 6 months
JURISDICTION
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Jurisdiction can be up to the maximum
allowed under the statute governing each
charge.
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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
JURISDICTION
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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.
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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?
JURISDICTION
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But isn’t it true that a judge has
jurisdiction to modify the terms of
probation throughout the duration of the
probation?
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What’s the problem here?
JURISDICTION
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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?
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Can you agree to extend his sentence to 12
months so that he won’t get violated?
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What if the defendant is on board, and doesn’t
object?
JURISDICTION
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Tips to avoid problems:
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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
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Ex: Enroll in Shoplifting Class within first 30 days
of probation
JURISDICTION
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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?
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Why or why not?
JURISDICTION
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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
JURISDICTION
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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?
JURISDICTION
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Another question: what if the Defendant
was in jail when he was sentenced?
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When does your jurisdiction (probation)
begin?
What if he’s in jail on some other charge for
the whole period of your probation?
WARRANTS
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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!
WARRANTS
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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?
WARRANTS
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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
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Ex: Condition 5 & 7 for a single failed u/a
PROVING YOUR CASE
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Burden is “preponderance” or “greater
weight of the evidence”
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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
PROVING YOUR CASE
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No right against self-incrimination
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But D testimony cannot be used in separate
criminal prosecution
Hearsay is admissible
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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
PROVING YOUR CASE
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Be sure to note in your file any and all
statements of the D that may support
violation
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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
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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
PROVING YOUR CASE
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With regard to financial violations:
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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…
SENTENCING THE VOP
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GLOSSARY:
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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
SENTENCING THE VOP
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GLOSSARY (CONT’D)
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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
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SENTENCING THE VOP
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Court can revoke probation that hasn’t
even started yet
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Ex: consecutive terms with VOP in 1st term
Court can ignore CPC if modifying or
continuing
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It’s only a sentencing if probation is revoked
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Then CPC applies and must be followed
QUESTIONS???