History of the Case

It is reported that the defendant was charged with multiple crimes, including aggravated battery. He entered into a plea agreement that included sixty months of probation. In the first two years of his probation, the defendant was found to be in violation and was placed on community control. Another affidavit of violation was filed, alleging two additional violations of his community control, namely that he failed to remain in his residence and failed to complete a drug treatment program.

Allegedly, a hearing was held during which it was determined that the defendant was not present at his residence and his absence was not authorized, but that he was released from his drug treatment program due to health issues. He was found to have violated both conditions, and his community control was revoked. He was then sentenced to over five years in prison, after which he appealed.

Determining Whether a Violation of a Condition of Probation Warrants Revocation

A court reviewing a revocation order must first determine whether the finding that a defendant substantially and willfully violated the term of probation is supported by competent evidence. Further, a supervision violation will be deemed willful only when the defendant neglects to make reasonable efforts to comply with the condition that was allegedly violated. The court also noted that a revocation of probation based on a defendant’s failure to complete a rehabilitation program is only warranted when the failure was due to the defendant’s fault.

In the subject case, the appellate court found that there was substantial and competent evidence that the defendant violated the term of his probation that required him to remain in his residence. Regarding the condition that he completes drug treatment, however, the appellate court found that there was no willful violation.

The court explained that when some grounds for revocation are upheld on review and others are deemed invalid, the appropriate action is to reverse the order and remand for reconsideration unless it is clear that probation would have been revoked based on one of the upheld grounds. Here, the court found that the defendant would have been found in violation of his community control based upon his failure to remain in his residence. Thus, the revocation was affirmed.

Meet with a Trusted St. Petersburg Criminal Defense Attorney

Many people convicted of crimes are fortunate to be sentenced to probation, but if they violate the terms of their probation, it can lead to harsher penalties. If you are charged with a probation violation, it is advisable to consult an attorney to discuss your rights. William Hanlon of Hanlon Law is a trusted criminal defense attorney who can assist you in fighting in pursuit of a just outcome. You can reach Mr. Hanlon through the online form or at 727-897-5413 to schedule a conference.

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The Defendant’s Probation

It is alleged that in 2018 the defendant was placed on probation for first-degree murder. In June 2020, an affidavit was filed indicating he violated the terms of his probation by committing three new offenses. He was taken into custody and held without bond, and faced a life sentence if he was found guilty of violating his probation.

Reportedly, in October 2020, the Florida Supreme Court issued an order providing that all rules and court orders that prohibited the use of communication equipment for remote proceedings were suspended. Thus, it was determined at a status conference that the defendant’s probation violation hearing would be conducted via remote means. The defendant objected to the remote hearing, as he would not be in the same room as his counsel, and stated that it would constitute a violation of his Constitutional rights. The court overruled his objections, and the defendant appealed.

The Right to be Physically Present in a Courtroom

Generally, criminal defendants have a right to be physically present during all serious stages of a trial, pursuant to due process. As such, in determining whether a proceeding complies with this constitutional mandate, a court must consider whether the proceeding constitutes a serious stage and whether the requirement of presence can be satisfied by a method other than in-person presence. The court must also determine whether there are exceptions to the general rule.

The court explained that Rule 3.180 of the Florida Rules of Criminal Procedure required that a defendant has a right to be physically present for multiple enumerated criminal proceedings. The court noted that while on its face Rule 3.180 indicated that the refusal to allow the defendant to appear in person would constitute a violation of his rights, probation hearings were not specifically included within the scope of the Rule. Further, even if they were included under the Rule, the orders issued by the Florida Supreme Court suspended the application of the rule. The court also found that in light of the pandemic, a remote hearing did not constitute a violation of the defendant’s rights.

Speak with an Experienced St. Petersburg Criminal Defense Attorney

There are many laws that protect the right of a criminal defendant to receive a fair trial. If you are accused of a probation violation crime or any criminal offense, it is advisable to consult an attorney to discuss your options. William Hanlon of Hanlon Law is an experienced St. Petersburg defense attorney who will diligently pursue the best outcome available in your case. You can reach Mr. Hanlon via the online form or at 727-897-5413 to set up a meeting.

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Facts Regarding the Defendant’s Probation.

It is alleged that the defendant was charged with lewd or lascivious conduct. He pleaded no contest, after which he was placed on sex offender probation. After he was released from jail, he went to the location approved by his probation officer, which was the home where he lived prior to his arrest. Upon arrival, he learned his wife had sold the home. He was then placed with a sponsor at a second residence, but disliked the location and requested to move.

It is reported that the defendant’s probation officer approved the move but advised the defendant he could not move until his new residence was inspected. The defendant moved regardless. The defendant was then charged with four counts of violating the conditions of his probation. He was convicted on all four charges, after which he appealed, arguing there was insufficient evidence to show that he violated two of the conditions in question.

Evidence Sufficient to Show a Violation of a Probation Condition

One of the terms of the defendant’s probation required the defendant to comply with the reporting requirements set forth by Florida Statutes Section 943.9435. Specifically, he was required to notify his probation officer within forty-eight hours of any relocation. The evidence of record showed, however, that he was arrested within one day of when he moved for failing to comply with the reporting requirements. As such, the court found that his arrest was premature and could not support the finding that he substantially and willfully violated the terms of his probation.

The second condition the defendant argued he did not violate was the condition that required him to promptly and accurately answer any questions from his probation officer. The lower court found that the defendant violated this condition by providing general directions when he was asked where he resided. Upon review, the appellate court found that evidence did not support this finding. Instead, the evidence showed that the probation officer knew where the defendant was living. Thus, the court found that the defendant did not willfully evade any questions from his probation officer. As the court could not assess whether the defendant’s probation would have been revoked absent the rulings that he violated the two conditions in question, the court remanded the case to the lower court for further review.

Meet with a Skillful Sex Crime Defense Attorney

Criminal defendants who are sentenced to probation following a conviction for a sex crime can face significant penalties if they do not comply with the probationary terms. If you are faced with sex crime charges, it is important to meet with a skillful sex crime defense attorney regarding your available defenses. William Hanlon of Hanlon Law is a St. Petersburg attorney with the skills and experience needed to help you seek a favorable outcome. Mr. Hanlon can be reached at 727-897-5413 or through the form online to schedule a confidential and free consultation.

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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.

That said, the court found that he had clearly violated the probation officer’s instruction that he not possess an internet-accessible phone. The court also pointed out that the original order sentencing him to probation included the condition that he “comply with all instructions from his probation officer.” The court also rejected the defendant’s claim that the no-phone requirement wasn’t reasonably related to his conviction.

“In this case, it is reasonable that [the defendant’s] probation officer would instruct him not to possess a smartphone,” the court said. “[He] was convicted of using the internet to solicit sexual activities with a minor.”

If you or a loved one has been charged with a sex crime in Florida, it is essential that you seek the advice and counsel of an experienced lawyer. St. Petersburg sex crime attorney Will Hanlon is a seasoned lawyer who fights aggressively on behalf of clients charged with a wide range of offenses. Call our offices at (727) 897-5413 or contact us online to speak with Mr. Hanlon about your case.

More blog posts:

Hearsay Defense Doesn’t Work for Florida Man in Failure to Register as Sex Offender Case

Limitations Period Expired for Sex Crime Charge, Rules Florida Appeals Court

Florida Supreme Court Explains State Criminal Law on HIV Sex

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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.

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