Case Setting

Allegedly, the defendant was previously convicted of possession of a controlled substance in 2022 and placed on probation as part of his sentence. During the term of supervision, the State initiated proceedings alleging that the defendant violated the conditions of his probation, prompting a revocation hearing before the trial court.

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Facts of the Case

It is reported that the defendant was originally placed on probation following convictions for two third-degree felonies: felony battery and robbery by sudden snatching. The trial court imposed concurrent five-year probation terms for these offenses in 2021. While on probation, the defendant was arrested and later convicted of arson, a first-degree felony under Florida law. Following his conviction, the court held a combined hearing to address both the probation revocation and sentencing for the arson offense. The defendant was adjudicated guilty of violating his probation based on the new arson conviction.

It is further reported that during the sentencing hearing, the State submitted a single scoresheet that listed the arson conviction as the primary offense and included the two prior third-degree felonies as additional offenses. The court found that the defendant qualified as a habitual felony offender and imposed a life sentence for the arson conviction under Florida’s habitual offender statute. The court then imposed concurrent sentences of 64.95 months for the two prior offenses based on the scoresheet, which calculated this as the lowest permissible sentence under the Criminal Punishment Code. The defendant appealed, arguing that his sentence for the probation violations was illegal.

Sentencing Errors in Florida Criminal Cases

On appeal, the court affirmed the revocation of probation but vacated the defendant’s sentences on the probation violations. The court began its analysis by clarifying that Florida’s sentencing framework distinguishes between habitual felony offender sentencing and sentencing under the Criminal Punishment Code (CPC). Under Florida law, habitual offender sentencing is separate from and not subject to the CPC. Accordingly, a conviction punished under the habitual offender statute should not appear on a CPC scoresheet.

The court held that the trial court committed reversible error by including the arson offense, which was sentenced under the habitual offender statute, on the CPC scoresheet used to calculate the sentences for the probation violations. This inclusion inflated the lowest permissible sentence beyond the five-year statutory maximum applicable to the third-degree felonies. Because Florida law mandates that the CPC scoresheet must not include habitual offender sentences, the resulting prison terms of 64.95 months were deemed illegal.

The court also rejected the State’s argument that the defendant had waived his right to challenge the sentence by failing to object at the sentencing hearing. The defendant had filed a motion to preserve the sentencing error for appeal, and the court concluded that passive acquiescence to a scoresheet error did not amount to invited error. The panel unanimously agreed that the error required reversal and remanded the case for resentencing using a properly prepared scoresheet that excluded the arson offense.

Speak to a Clearwater Criminal Defense Attorney About Your Case

Sentencing errors can have profound and lasting consequences for individuals involved in the Florida criminal justice system. If you are facing a sentencing or probation violation hearing in Florida, it is critical to work with an attorney who understands the intricacies of Florida’s sentencing laws and will protect your rights from beginning to end. The experienced Clearwater criminal defense lawyers at Hanlon Law are ready to review your case and help you pursue the best possible outcome. Call us today at 727-897-5413 or contact us online to schedule a confidential consultation.

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Factual and Procedural Background

Allegedly, the defendant was charged with violating the terms of his probation for a sex crime conviction, Specifically, it was alleged that he possessed pornography in violation of the terms of his probation. Following a hearing, the court found that the defendant violated his probation and revoked his probation. He was subsequently sentenced to ninety-nine months imprisonment. The defendant appealed, arguing that the trial court committed an error by ruling he violated the term of his probation prohibiting him from possessing pornography, because the State failed to show that the pornographic materials had any bearing on the deviant behavior that originally led to his sex crime conviction.

Sufficiency of Affidavit of Violation of Probation

Under Florida law, sex offenders who are sentenced to probation are required to have a prohibition on possessing pornographic materials as a term of their probation. Before October 2014, the law required that the pornographic materials subject to prohibition bear a relationship to the defendant’s pattern of deviant behavior. After October 2014, however, the statute was revised to require the prohibition of any pornographic materials as a term of a sex offender’s probation. As such, anyone placed on probation after October 2014 following a conviction for a sex crime is prohibited from owning any pornographic materials. Notably, however, the statutory modification did not alleviate the earlier provision prohibiting pornographic materials related to the offender’s deviant behavior.

In the subject case, the court noted that the defendant’s offenses were committed after October 2014, and the statutory change was reflected in the terms of his probation. The court clarified that while one of the terms of the defendant’s probation barred him from possessing pornography that bears a relationship to the deviant behavior that lead to his conviction, he was also barred from possessing any pornography at all. The State’s affidavit alleged defendant’s probation was violated however, solely on the alleged violation of the possession of pornography relating to his deviant behavior.

The court noted that it may constitute a violation of due process to revoke a defendant’s probation based on conduct that was not alleged in the State’s affidavit. The court held, however, that when a defendant’s probation is revoked based on an affidavit that does not precisely allege a violation but nonetheless places the defendant on notice of his or her alleged misconduct, the deficiency is harmless. Thus, the court affirmed the revocation of the defendant’s probation.

Meet with an Experienced Clearwater Sex Crime Defense Attorney

If you are faced with a charge of committing a sex crime or violating probation following a conviction for a sex crime it is vital to meet with an experienced Clearwater sex crime defense attorney to discuss your rights and what arguments you may be able to set forth in your defense.  Attorney William Hanlon of Hanlon Law is a proficient attorney who will zealously defend you against the State’s charges. Mr. Hanlon can be contacted at 727-897-5413 or through the online form to schedule a conference to discuss your case.

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Facts of the Case

Reportedly, the defendant was charged with violating three of the terms of his probation. The first violation was for allegedly failing to comply with the requirement that the defendant must report to his probation officer, the second violation was for moving without notifying his probation officer and obtaining his consent, and the third violation was for committing a new criminal offense. A hearing was held after which his probation was revoked, and a sentence was imposed. The defendant appealed, arguing that his right to due process was violated during the hearing.

Due Process in Probation Violation Hearings

In Florida, the right to due process in criminal proceedings extends to cases in which violation of probation cases. To comply with the due process requirements, the probation order must place the probationer on adequate notice of the conduct that is prohibited and required during the probationary period. Additionally, if a violation of probation has allegedly been committed, both the affidavit of the violation and the court’s finding that a violation has been committed must mirror the language of the probation terms. Thus, terms that are not set forth in the conditions of probation cannot form the basis of an alleged violation of probation.

In the subject case, the appellate court found that the trial court erred in finding the defendant violated the second term of his probation. Specifically, the court’s findings that the defendant violated the terms of the second condition, prohibiting the defendant from moving without notice and consent, were limited to the terms of the first condition, which required the defendant to report to his probation officer. In other words, the findings only referred to the defendant’s reporting requirement. As the trial court’s findings did not mention the requirements of the second condition, the appellate court found that the finding that the defendant violated the second condition must be stricken from the order revoking probation.

Consult an Experienced Clearwater Probation Violation Defense Attorney

If you live in Clearwater and are currently charged with a probation violation it is in your best interest to consult an experienced Clearwater probation violation defense attorney regarding your alleged violations and your potential defenses. Attorney William Hanlon of Hanlon Law is a seasoned Clearwater probation violation defense attorney who can provide you with an assertive defense to help you protect your liberties. Hanlon Law can be reached at 727-897-5413 or through the form online to schedule a confidential and free consultation.

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A Florida appellate court recently analyzed whether a juvenile’s sentence of 100 days of detainment following violations of a probation order was unlawful. If you are a juvenile resident of Clearwater and are charged with a criminal offense or probation violation, it is in your best interest to meet with a skilled Clearwater criminal defense attorney to discuss your rights under the law.

Terms of the Defendant’s Probation

Reportedly, the defendant was placed on probation for petit theft and possession of cannabis. The terms of the defendant’s probation required her to live at her mother’s home. While she was on probation, the defendant was charged with possession of a controlled substance. During a conference regarding her probation violation, the court issued a “Do Not Run Order.” The order required the defendant to live at her mother’s home and put the defendant on notice that if a rule to show cause was issued a hearing could be held on whether she was guilty of contempt. Further, the order stated that the defendant was on notice that she faced five days for the first day she was on the run, but no more than fifteen days for each subsequent day. Each day on the run was considered a separate contempt offense.

It is alleged that the defendant left her mother’s home on December 26, 2018, and was not located until January 4, 2019, when she was picked up by the police. The State filed a Rule to Show Cause to commence contempt proceedings against the defendant, after which the court issued an order to show cause as to why the defendant should not be held in contempt.  The trial court held an evidentiary hearing, after which the defendant was found guilty of contempt due to ten separate violations of the Do Not Run order. She was sentenced to ten days for each violation to run consecutively, for a total of 100 days. The defendant filed a petition for a writ of habeas corpus arguing that she was unlawfully detained and that her sentence was improper. The court denied her petition.

Statute Pertaining to Juvenile Contempt Proceedings

The defendant argued that her alleged violation of the Do Not Run order constituted a single act of contempt, and therefore, her sentence was illegal. The court noted that the statute pertaining to juvenile contempt proceedings allows for a juvenile who has been held in contempt to be placed in a detention facility for up to five days for a first offense and up to fifteen days for a subsequent offense. The court stated in interpreting the statute regarding contempt proceedings in a similar case, the Florida Supreme Court held that a juvenile who violates an order on multiple occasions commits several acts of contempt and can be sentenced for each act.

Here, the court noted that the defendant had previously violated the order to remain in her home. Subsequently, the trial court issued an order stating the defendant would face a separate contempt charge for each day she remained on the run. Thus, the court held that each day the defendant refused to comply with the trial court’s order constituted a separate violation. Moreover, the court stated that to find otherwise would undermine the court’s order and vitiate the language of the statute. As such, the court denied the defendant’s petition.

Confer with a Skilled Clearwater Criminal Defense Attorney

Under Florida law, juvenile defendants are afforded certain rights and protections. If you are a juvenile who lives in Clearwater and are currently facing criminal charges, you should confer with a skilled  Clearwater criminal defense attorney to discuss potential defenses.  Attorney William Hanlon of Hanlon Law is a proficient Clearwater criminal defense attorney who will work diligently to help you retain your liberties. Mr. Hanlon can be reached at 727-897-5413 or through the online form to schedule a meeting.

More Blog Posts:

Florida Appellate Court Overrules Conviction Due to Improper Waiver of a Juvenile’s Right to Counsel, December 10, 2018, Clearwater and St. Petersburg Criminal Lawyer Blog

The post Florida Court Upholds a Juvenile’s Sentence of 100 Days of Detainment Following Probation Violations appeared first on Clearwater Criminal Lawyer Blog.

A Florida appellate court recently ruled, however, that a trial court is permitted to consider facts underlying a subsequent arrest when considering whether to revoke a convicted felon’s community control.  If you live in Clearwater and are charged with a crime, it is important to retain an experienced Clearwater criminal defense attorney who will work diligently to help you retain your rights.

Facts Regarding the Defendant’s Criminal History

Reportedly, the defendant was convicted of second-degree murder. He was sentenced to eighteen years in prison followed by two years of community control. Four months after his release to community control the State filed an affidavit alleging the defendant violated his community control. Specifically, he failed to remain in his residence and refused to submit to a urinalysis. The State later amended the affidavit to include allegations that the defendant had recently been arrested for burglary, resisting officers without violence, and drug crimes.

It is alleged the defendant admitted to all of the violations. A hearing was held regarding the revocation of community control and resentencing of the defendant. Evidence was presented at the hearing regarding the defendant’s alleged recent crimes. At the conclusion of the hearing, the trial court revoked community control and sentenced the defendant to life in prison. The defendant appealed, arguing the trial court committed an error in sentencing him based on his pending criminal charges.

Florida Law Regarding Evidence Permitted at Community Control Revocation Hearings

Under Florida law, a trial court sentenced a defendant that has been convicted of a crime is not permitted to consider the details of pending charges that allegedly occurred after the primary offense. The court noted, however, that the same rules did not apply in revocation hearings. The court stated that community control imposes strictly supervised custody in the community, that helps prevent further violations of the law. Courts do not have unrestrained power to revoke community control but must afford defendants due process.

Specifically, a court seeking to revoke community control must first determine whether the defendant subject to control committed a violation. The court must then assess whether any violation that has been committed is grounds for revocation. Additionally, a court must allow the defendant an opportunity to be heard at a hearing prior to revocation. A court may properly revoke community control when it has a thorough understanding of the defendant’s behavior while serving community control. Here, the court found that the defendant committed multiple violations of his community control. Additionally, the evidence presented at the hearing indicated he was unable to live in society without violating the law. As such, the court found that the trial court was within its discretion in revoking the defendant’s community control.

Speak with a Trusted Criminal Defense Attorney in Clearwater Regarding Your Case

If you are a Clearwater resident currently charged with a crime, you should meet with an experience Clearwater criminal defense attorney to discuss the facts of your case and determine what defenses may be available to the charges you face.  William Hanlon of Hanlon Law a skilled Clearwater criminal defense attorney with the knowledge and experience needed to help you seek a favorable result under the circumstances. Mr. Hanlon can be reached at 727-897-5413 or through the online form to set up a consultation.

More Blog Posts:

Federal Court Clarifies What Prior Convictions Count Toward Career Offender Status Under Florida Law, January 2, 2019, Clearwater and St. Petersburg Criminal Lawyer Blog

The post Court Rules a Judge can Consider an Arrest Without a Conviction During a Florida Community Control Revocation Hearing appeared first on Clearwater Criminal Lawyer Blog.

The United States Court of Appeals for the Eleventh District of Florida recently clarified this issue, in a case where the defendant appealed the revocation of his supervised release, arguing that the state improperly relied on hearsay evidence in obtaining the revocation.  If you are a Clearwater resident currently facing criminal charges, it is in your best interest to retain a seasoned Clearwater criminal defense attorney as soon as possible to help you formulate a defense.

Prior Conviction and Subsequent Alleged Violation 

Allegedly, in 2009, the defendant pled guilty to possession of crack cocaine with the intent to distribute and possession of a firearm in relation to a drug trafficking offense and was sentenced to 111 months’ imprisonment and five years of supervised release. His supervised release began in 2016. Approximately one year later, the district attorney sought a warrant for the defendant’s arrest, alleging he violated the terms of his supervised release by committing a multitude of crimes, including aggravated battery.

Revocation Hearing

The state indicated it intended to produce three witnesses at the revocation hearing; the reported victim, the officer who responded to the call and interviewed the victim, and the defendant’s probation officer, who also interviewed the victim. The officer who responded to the call testified that the victim said a man named T.J. assaulted him, which the defendant’s attorney objected to as hearsay. The officer also testified that a composite sketch later revealed that T.J. was the defendant. The defendant’s probation officer also testified that the victim told her that T.J. assaulted him, which the defendant’s attorney objected to as hearsay as well. Lastly, the victim testified that the defendant attacked him and took his cell phone and car keys from his car.

Following the hearing, the court found that the defendant violated the terms of his release and sentenced him to 51 months’ imprisonment. The defendant appealed, arguing the state violated his due process rights by admitting hearsay testimony. On appeal, the court affirmed the trial court ruling.

Evidentiary Standards for Parole Hearings

The court noted that a district court may withdraw supervised release if it finds the majority of the evidence indicates that a defendant violated the terms of his or her release. The court stated that although the Federal Rules of Evidence do not apply to hearings to determine whether the supervised release should be revoked, hearsay testimony is not automatically admitted. At such a hearing, the defendant is entitled to certain rights, such as the right to confront witnesses. Thus, a court weighing whether to admit hearsay testimony must balance the defendant’s right to question a witness with the grounds set forth by the state for denying confrontation. If a court fails to conduct a balancing test, it constitutes an error. The court noted, however, that if the evidence indicates a violation of the terms of release, the failure to engage in a balancing test is harmless.

Here, the court found that the officers’ testimony did not constitute hearsay, because the victim was at the hearing and was cross-examined. As such, the court found that the statements set forth by the police were prior consistent statements. Further, because the witness was present at the hearing and was cross-examined, the balancing test for weighing hearsay evidence against the state’s reasoning for not producing the witness was not required.

Consult a Seasoned Clearwater Criminal Defense Attorney

If you live in Clearwater and are facing criminal charges, you should consult a seasoned criminal defense attorney to discuss the facts of your case and develop a plan for your defense.  William Hanlon of Hanlon Law is an experienced Clearwater criminal defense attorney who will aggressively advocate on your behalf to help you try to retain your rights. Call our offices at 727-897-5413 or contact us through the online form to set up a meeting.

More Blog Posts:

Florida Court Explains Independent Act Doctrine December 17, 2018, Clearwater and St. Petersburg Criminal Lawyer Blog

Court in Florida Looks at Probation Violations when Affidavit is Missing November 12, 2018, Clearwater and St. Petersburg Criminal Lawyer Blog

Court in Florida Looks At Probation Violations October 1, 2018, Clearwater and St. Petersburg Criminal Lawyer Blog

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Probation in Florida

There are several different kinds of probation in Florida. The general kind of probation more or less allows defendants to live their normal lives, but requires them to check in with their probation officer periodically. Of course they must follow all laws and not engage in any criminal behavior. Along with the supervision requirements, probation often includes requirements to attend or complete programs such as drug or alcohol rehabilitation or counseling. Probation can also make certain generally lawful behaviors unlawful, such as possessing firearms or socializing with people who have criminal records.

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Probation Violation in Florida

Probation can make otherwise lawful activity unlawful. For example, while of course it is usually legal for adults to be out of their home after 9pm, if being home by 9pm is a condition of your probation, you can be arrested for being out later than that. Another interesting aspect of probation is that the standard of proof is different than with criminal court. In order to prove a violation of probation, the state does not have to prove the violation beyond a reasonable doubt. Those charged with a violation of probation will also not have the opportunity to go in front of a jury but will instead be subject to the judge’s ruling. If a judge finds that a defendant has violated their probation, they can be sentenced to the maximum amount of time permitted for the underlying charge. The court will look at the conviction which led to the probation, not the conduct that violated the probation.

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Probation and Suspended Sentences

In some cases, especially for minor and first offenses, instead of incarceration, the judge may order probation or a suspended sentence. A suspended sentence means that the defendant will not have to serve the sentence if they meet certain requirements for a specific period of time. During sentencing, the judge should make clear what the conditions of the suspended sentence are and what the conditions of probation are. Sometimes all that is needed for a suspended sentence is to stay out of trouble. In other cases, the defendant may need to attend rehab or pursue employment.

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