Avoiding a Probation Violation Based on a Requirement Your PO Imposed but the Court Didn’t

If you are placed on probation, you need to understand several things. One is that you should take your probation very seriously. Another is that you should take any alleged violation of your probation equally seriously. If a prosecutor successfully persuades a judge that you violated your probation, you could face many years (or decades) behind bars that you otherwise would have avoided. If you have questions about your potential violation of probation, make sure you’re getting reliable answers by seeking advice from a knowledgeable Tampa Bay probation violation lawyer.

If you are facing a probation violation case, you have multiple ways in which you can attack it. A recent local case illustrates a few of those avenues.

The probationer was a Tampa man named Angel who, after a 2013 arrest, entered an open plea to multiple sex crimes charges. (An open plea means that you’ve pled guilty without reaching a sentencing agreement with the prosecutor; rather, you plead guilty and essentially “throw yourself on the mercy of the court.”) The judge in Angel’s case sentenced him to 20 years’ probation.

Eight years later, the man’s probation officer alleged several probation violations, so the state sought revocation. The crux of the case centered on the man’s alleged failure to plug in his ankle monitor device daily by 10:00 p.m. on three occasions: July 16, 2021, July 23, 2021, and July 24, 2021.

One method for attacking the state’s allegation of a violation is to assert that you were never subject to the condition of probation that you allegedly violated. For example, in this Tampa man’s case, if the conditions of his probation did not properly place him on mandatory electronic monitoring, then he could not possibly be in violation based on his failure to plug in an ankle device.

What terms you are (or aren’t) subject to relates back to something called a “Community Control Disclosure.” That document includes both the standard (automatic) conditions and special (optional) conditions of your probation. For example, Special Condition 10 says “You will submit to electronic monitoring, follow the rules of electronic monitoring, and pay $___ per month for the cost of the electronic monitoring service.” In Angel’s case, the court did not check that box.

The court did, however, include “Special Condition 31,” which imposes mandatory electronic monitoring upon anyone convicted of certain sex crimes on or after Sept. 1, 2005. The result, therefore, was that, even though the Tampa man wasn’t properly under the demands of condition 10, he was under mandatory monitoring based on condition 31.

Probation Officers May Not Add New Conditions

Another avenue for defending against a probation violation is to demonstrate that the thing you did (or didn’t do) wasn’t a demand made by the court but was an “additional condition” imposed by your probation officer. In this probationer’s case, the daily 10:00 p.m. charging requirement wasn’t in any court order; it was a rule the probation officer established.

Probationers on mandatory monitoring are required to maintain their equipment, including keeping it charged but, according to multiple courts in Florida, enforcing a specific time to plug in one’s monitor “essentially imposes a new condition of probation [that] is not a routine supervisory direction,” which is something that a PO may not do. If you fail to comply with an instruction from your PO but that requirement was not one of your court-ordered conditions, then you cannot be deemed in violation. That’s true even if the conditions of your probation included a requirement to follow all the instructions your PO gives you.

The court, in reversing the order of revocation, also restated one of its 2014 probation violation rulings, which cautioned that “community control [or probation] should not function as a thinly disguised trap whereby the controlee’s slightest misstep results in revocation and a substantial prison term at the whim of the controlee’s community control [or probation] officer.”

In this man’s case, the PO overstepped, so the finding of a violation was improper.

When defending against an alleged violation of probation, experienced representation matters. The team of skilled Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. includes former prosecutors who have spent years handling these cases, learning how judges respond, and deciphering what techniques will yield the best chances of success. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

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