In September of 2014, the United States Justice Department awarded a $750,000 grant to the Florida Department of Corrections to fund the SMART Re-entry Probation Program. Tucked into this grant money was a provision that enabled a new program whereby the court would implement an “administrative diversion option” for handling certain felony violation of probation cases. Beginning in April of 2015 the Pinellas County “Alternative Sanctions Program” (ASP) became operational.
How Does it Work?
The Pinellas program now requires a probation officer to inform an offender under their supervision when he has violated a technical condition of his probation and to advise the offender if he is eligible to “side-step” conventional violation of probation proceedings by electing to participate in the “Alternative Sanctions Program.” It is important to understand that this process would take place in lieu of an affidavit of violation of probation being filed with the Clerk of Court. Accordingly, it also avoids a VOP warrant being issued by the judge.
If the offender wishes to participate in the Alternative Sanctions Program, he is then given the opportunity to sign a “Waiver of Formal VOP Hearing, Admission of Violation, and Acceptance of Sanctions. This document includes the date and nature of the violation. It also provides for the probation officer’s recommendation as to the sanctions the court should impose. Pinellas County Administrative Order No. 2014-079 PI-CIR incorporates attachment “A” which is a “Violation/Sanction Matrix.” This Matrix lists twelve common technical violations, along with an approved list of sanctions from which the probation officer is required to select. For example, let’s say the offender tested positive for a controlled substance in connection with a urinalysis. The probation officer would be required to select one or a combination from the following “Approved List of Sanctions:”
1. Drug Evaluation and successfully complete treatment determined necessary.
2. Increase level of treatment program up to and including residential.
3. AA/NA – 1 x week for 60 days.
4. Curfew from 8 PM to 6 AM for 60 days
The offender signs the Alternative Sanctions Program/Waiver document, as does the probation officer and the probation officer’s supervisor. In so doing, the offender admits to the technical violation and acknowledges the recommended sanction(s). This document is then forwarded to the judge, along with a proposed court order for the judge to sign. (Pinellas County Administrative Order No. 2014-079 PI-CIR, attachment “C” incorporates a pre-printed court order.) The court order enables the judge to check off one of three options.
- He can approve the offender’s participation in the Alternative Sentencing Program, along with the new sanctions recommended by the probation officer;
- Approve the offender’s participation in the Alternative Sentencing Program, but institute different sanctions; or
- Deny the offender’s request to participate in the Alternative Sentencing Program and direct the Department of Corrections to submit a Violation Report, Affidavit and Warrant to address the alleged violation.
Who is Eligible for the Alternative Sanctions Program?
- Those persons facing a violation of probation proceeding in Division “Q”;
- Offenders who reside in Pinellas County and who have stable ties to the community; and
- Persons who have a “technical” violation and have not been charged with committing a new criminal offense while on probation.
Who is not Eligible for the Alternative Sanctions Program?
- Those persons who were originally sentenced to sex offender probation;
- Those persons who have been designated a career offender;
- Those violation of probation cases where the underlying basis of the violation includes a violation of a “no contact” provision;
- Those persons who were on “Drug Offender” probation;
- Those persons who have violated Community Control (House Arrest); and
- Those persons who are viewed as an absconder.
Choosing to Participate in the Alternative Sanctions Program
Participation in the ASP is voluntary. It would enable you to continue on probation uninterrupted, as opposed to being arrested and facing a conventional violation of probation proceeding. On the other hand, any person who believes that they are “not guilty” of violating their probationary terms can choose not to participate in this program. If they wish to contest the violation, the matter will proceed in the conventional fashion. In other words, the probation officer will need to file a violation report, an affidavit of violation and request that a warrant be issued. Thereafter, you would be entitled to a violation of probation “evidentiary hearing” where the prosecutor would have the burden of proving the alleged violation by a preponderance of the evidence.
Are You Entitled to Speak to a Lawyer Before Deciding?
Absolutely! The administrative order openly admits that the Alternative Sentencing Program “will reduce the workload of the Court, State Attorney’s Office, Public Defender’s Office, DOC and law enforcement.” But, that is certainly not a reason to sign a legal document that has a significant impact on your case and your future obligations. Not all violations are black and white. For example, you may be in violation of your probation, but perhaps there are mitigating circumstances that the judge should be aware of. We need to ask these questions:
- If the judge were to be better informed of the facts and circumstances leading up to the violation, would he likely conclude that the state had not met its burden in proving that the violation was “willful?”
- If the judge were to be better informed of the facts and circumstances leading up to the violation, would he likely conclude that the sanctions recommended by the probation officer were inappropriate?
If you are offered the opportunity to enter the Alternative Sentencing Program but want to first speak with a lawyer, it would be prudent to discuss this in a diplomatic way with your probation officer. You should be polite, respectful and express your gratitude for the opportunity. You should indicate that you are inclined to go that route, but that you would like a very brief opportunity to first speak with a lawyer. In that regard, you should suggest scheduling another appointment with the DOC within the following few days to “finalize” the process.
A Decade Ago, “Administrative” Violations Would be Unheard of
In 2004, a Sarasota man by the name of Joseph P. Smith suffered a technical probation violation in connection with his drug possession charge. His judge, Harry Rapkin had a reputation in the legal community for imposing harsh sentences. In fact, he was known to be so tough that it had earned him the courthouse moniker of “Hang ‘Em High Harry.” In this case, Judge Rapkin reinstated the man’s probation. After all, the basis of the violation was a failure to timely meet court imposed financial obligations. Smith was reinstated on probation and released from custody, whereupon the offender committed the heinous act of abducting, raping and murdering a child. A firestorm of controversy erupted over how the Florida courts handled felony violations of probation. Judge Rapkin received death threats and there were even organized efforts to remove him from the bench. See also: The Problem With Probation-St. Petersburg Times.
The Smith case caused a knee-jerk reaction in Pinellas County and across the State of Florida. Felony probation officers were instructed to request a warrant in every case, regardless of the nature of the violation. The age old practice of the Department of Corrections providing a written sentence recommendation to the judge was terminated. In addition, Pinellas County felony violation of probation warrants thereafter carried a zero bond amount. This meant that a bondsman would serve no purpose, because no amount of money could secure your release without a hearing and the judge’s subsequent modification of the bond.
But... times change. Budgetary problems often skew public policy and legislation. Below are some examples:
Potential Legal Issues Raised by the Alternative Sanctions Program
Last year, a misdemeanor VOP alternative sentencing path in Pinellas County was found to be contrary to Florida law. The program was well intentioned and strongly supported by Pinellas County Criminal Defense lawyers. Nevertheless, the appellate court took issue with the method of imposing VOP sentences and invalidated the sentencing methods being employed. As with any new program, only the future will tell if the ASP is well conceived. The three criminal defense lawyers in our office have already identified what we believe to be a deficiency in the Sanctions/Waiver document. There are additional issues that may need to be resolved and are likely to lead to litigation. Consider these points:
1. An arrest for a felony violation of probation can clearly be avoided by using a “notification letter” as authorized by Florida Statute Section 948.06(1)(g). However, we believe that in order for a modification of an offender’s probation to be lawful and enforceable, Florida Statute Section 948.06(2)(a-e) requires that the offender appear before the court. This premise appears to have been recognized in 2007 by then Chief Judge Robert j. Morris when he drafted Administrative Order Number: 2007-081-PA/PI-CIR. Judge Morris authorized a method of handling violations of felony probation consistent with then recently amended Florida Statute Section 948.06(1). That earlier administrative order provided for a means of avoiding the expense associated with the issuing and serving of a warrant. However, it is important to recognize that Judge Morris provided within his order an approved “Notice to Appear” to be used in scheduling a violation of probation hearing that mandated the offender’s appearance before the Circuit Court.
The Second District Court of Appeal in Suliany Ivette Garcia-Medina v. State of Florida, relying on the Florida Supreme Court in Clark v. State held that “Section 948.06, Florida Statutes (1987), provides the sole means by which the court may place additional terms on a previously entered order of probation or community control. Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge.” In Clark, Justice Shaw wrote “Before probation or community control may be enhanced, either by extension of the period or by addition of terms, a violation of probation or community control must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06. Absent proof of a violation, the court cannot change an order of probation or community control by enhancing the terms thereof, even if the defendant has agreed in writing with his probation officer to allow such a modification and has waived notice and hearing.” See also in support: Senior Judge David Demer’s highly regarded “Violations of Probation” Outline “Change in Sentence with VOP” Section II, A,(12), pages 6-7.
In our view, the new administrative felony violation of probation plan is unauthorized by both statutory and case law. If Pinellas County wants to save valuable resources by avoiding the issuance and execution of an arrest warrant, they need only have the probation officer issue the offender a written “notification letter of a technical violation.” This process is permitted by Florida Statute Section 948.06(1)(g). However, the letter should provide within it the date, time and place of the offender’s court hearing. This additional information would comply with Florida Statute Section 948.06(2) and the aforementioned appellate court decisions.
2. When given the choice between admitting to the violation of probation or getting arrested, does the subsequent admission comply with the Due Process the offender is guaranteed under the constitution? In addition, given the choice of signing the document or getting arrested, does the securing of an admission to the violation pass the strict requirement that it be made freely and voluntarily? Could these considerations serve as a defense and bar to a prosecution on a subsequent violation based on the offender’s failure to comply with new sanctions that were imposed in the Waiver of Formal VOP Hearing, Admission of Violation, and Acceptance of Sanctions document?
3. If the offender violates his probation again, is it appropriate to score six “community sanction” points for every previous “administrative” violation when calculating his sentence under the Florida Criminal Punishment Code (Sentencing Guidelines)? After all, these previous administrative violations were never based on sworn affidavits of violation. To complicate matters, the September 10th, 2014 Press Release issued by the Department of Corrections refers to ASP as “an administrative diversion option.” Yet, the Pinellas County Administrative order does not define the ASP Program as a “Diversion” program. In addition, an “administrative violation of probation” is not an act that permits “community sanction” points to be imposed under the “community sanction” definition found within the sentencing guidelines.
4. If the Judge imposes sanctions that differ from those that were selected by the probation officer and agreed to by the offender, would a subsequent violation of the substitute sanctions be subject to a challenge?
5. If the Judge imposes sanctions that differ from those that the offender agreed to and the offender then declines to participate in ASP, can his admission found in the Waiver of Formal VOP Hearing, Admission of Violation, and Acceptance of Sanctions document be used against him in a VOP evidentiary hearing?
6. If the offender would otherwise score mandatory state prison under the Florida Criminal Punishment Code as a result of a technical VOP, is he still eligible for participation in ASP?
7. In the event of a subsequent technical violations of probation, how many times can an offender participate in ASP? The administrative order is silent on this issue, while the Waiver of Formal VOP Hearing, Admission of Violation, and Acceptance of Sanctions document has a “check box” inquiring if this is a first or second violation. Then again, the administrative order provides that a probation officer “will” inform offenders of their eligibility for ASP and does not disqualify anyone for participation on the basis of multiple technical violations.
8. Could an ambiguity in the administrative order serve to later invalidate an ASP sentence modification? More specifically, the administrative order sets forth those offenders who qualify to participate.Paragraph 2 and 2(a) states ”Participation in the ASP is limited to offenders who were sentenced in Section Q in Pinellas County.” A plain reading of this requirement suggests that offenders who were originally sentenced in other court room divisions do not qualify. As such, to qualify, an offender would have to be facing at a minimum, his second violation of probation.
Keeping the Proper Perspective
If you are facing a Violation of Probation, you need to speak to a lawyer, regardless if your violation is technical or substantive. These are serious matters. As you have seen, the law is complex and the potential impact on your freedom is great.
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