Articles Posted in Probation Violation

If you are convicted of a Florida sex crime, you may have the opportunity to avoid actual jail time by asking for probation. This form of supervised release requires a person to check in regularly with a probation officer and comply with other terms. In sex offense cases, those restrictions may include limits on the person’s use of cell phones and the internet. As a recent case out of Florida’s Second District Court of Appeal makes clear, failing to live up to those requirements could land you behind bars.typewriter

A defendant was sentenced to five years of probation after he was convicted of using a computer to seduce a minor and attempted lewd and lascivious battery on a child. As a condition of his probation, a judge ordered that he “could not have access to the internet without a treatment safety plan in place.” His probation officer also told him that he could not own a cell phone that could access the internet. He went to live in a facility of sex offenders. A court revoked his probation and sentenced him to nearly six years behind bars after facility operators found that he was carrying a Samsung smartphone.

The defendant later appealed the decision, arguing that prosecutors never proved that he actually used the phone to access the internet. The Second District agreed. The appeals court noted that prosecutors had called only one witness – the defendant’s probation officer – during the hearing in which they asked to revoke his supervised release. The probation officer admitted on the witness stand that she had no evidence that the defendant actually used the phone to access the web. The defendant denied using the phone for internet purposes in his own testimony.

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ConstitutionThe Florida District Court of Appeal, Second District released an opinion on November 8, 2017, that addressed the due process rights available to a criminal defendant at a sentencing hearing. In the case, the defendant appealed the trial court’s decision to revoke his probation and impose a 40-month sentence. The Florida court of appeals applied earlier precedent from Florida criminal decisions to determine whether the State committed a reversible error when the defendant was interrupted during his sentencing hearing.

Due process rights require courts to render judgment only after they have properly considered the issues advanced by the parties. In the context of a probation violation hearing, the court must make separate determinations on whether to revoke probation and also whether the violation justifies the revocation of probation. The due process standard, according to the United States Supreme Court, gives a probationer the opportunity to present mitigating evidence and argue for sentencing alternatives when the trial court has sentencing discretion.

The primary Florida case cited was Amason v. State, 76 So. 3d 374 (Fla. Dist. Ct. App. 2011). In Amason, the defendant pled guilty to violating her probation. The charge included four alleged violations of probation, including a violation of condition 9 for a failure to make restitution payments and a violation of condition 3 for changing her residence without the approval of her probation officer. The trial court questioned the defendant, but the trial court interrupted her three times. The defendant’s counsel was unable to cross-examine the witnesses at the hearing. Moreover, the defendant was not able to respond to the allegation that she had committed fraud and that the maximum sentence should be imposed. The appeals court found that the court violated her due process rights. The appeals court reversed the trial court’s decision and remanded for a revocation hearing before a different trial judge so that the defendant could present mitigating evidence.