The defendant was placed on probation.  The State filed an affidavit charging the defendant with a violation of probation for “failing to live and remain at liberty without violating the law”.  At the violation of probation hearing, the defendant testified that he had had contact with law enforcement and that he faxed a copy of the citation he received for driving with a suspended license to his probation officer.  At the time of the violation of probation hearing the driving with a suspended license charge was still pending.  A copy of the citation was submitted into evidence.  When ask if he was driving on the date of the citation the defendant asserted his Fifth Amendment right to remain silent and did not answer.  The defendant’s probation officer testified that the defendant had notified him of the contact with law enforcement, and that he had requested to see the citation to see if it was a criminal or civil citation.   Upon consideration of this evidence the trial court ruled that the defendant was in violation of his probation.  The defendant filed an appeal.

The appeals court ruled the State did not show that the defendant committed any new crime, but instead, simply submitted evidence that the defendant had contact with a law enforcement officer.  It is improper to revoke probation based solely upon proof that the probationer had been arrested.  The State did not show that the elements of the crime of driving while license suspended, revoked, canceled, or disqualified were met.  See section 322.24(2), Florida Statutes (2010). License suspension, knowledge of the license suspension, and actual driving are the requisite elements of the crime of driving while license suspended.  The State did not prove that the defendant’s license was suspended, that the defendant had knowledge of the suspension, or even that the defendant had been driving on the date of the alleged infraction.  The defendant’s admission to having contact with law enforcement and receipt of a traffic infraction were not sufficient to show that the defendant violated any law. Consequently, since the evidence was insufficient to prove that a crime was committed, it was an error for the trial court to find the defendant to have violated probation.

See Prater v. State, 161 So.3d 489 (Fla. 5th DCA 2014)

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The defendant was placed on probation.  The State filed an affidavit charging the defendant with a violation of probation for “failing to live and remain at liberty without violating the law”.  At the violation of probation hearing, the defendant testified that he had had contact with law enforcement and that he faxed a copy of the citation he received for driving with a suspended license to his probation officer.  At the time of the violation of probation hearing the driving with a suspended license charge was still pending.  A copy of the citation was submitted into evidence.  When ask if he was driving on the date of the citation the defendant asserted his Fifth Amendment right to remain silent and did not answer.  The defendant’s probation officer testified that the defendant had notified him of the contact with law enforcement, and that he had requested to see the citation to see if it was a criminal or civil citation.   Upon consideration of this evidence the trial court ruled that the defendant was in violation of his probation.  The defendant filed an appeal.

The appeals court ruled the State did not show that the defendant committed any new crime, but instead, simply submitted evidence that the defendant had contact with a law enforcement officer.  It is improper to revoke probation based solely upon proof that the probationer had been arrested.  The State did not show that the elements of the crime of driving while license suspended, revoked, canceled, or disqualified were met.  See section 322.24(2), Florida Statutes (2010). License suspension, knowledge of the license suspension, and actual driving are the requisite elements of the crime of driving while license suspended.  The State did not prove that the defendant’s license was suspended, that the defendant had knowledge of the suspension, or even that the defendant had been driving on the date of the alleged infraction.  The defendant’s admission to having contact with law enforcement and receipt of a traffic infraction were not sufficient to show that the defendant violated any law. Consequently, since the evidence was insufficient to prove that a crime was committed, it was an error for the trial court to find the defendant to have violated probation.

See Prater v. State, 161 So.3d 489 (Fla. 5th DCA 2014)

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The defendant was placed on probation.  The State filed an affidavit charging the defendant with a violation of probation for “failing to live and remain at liberty without violating the law”.  At the violation of probation hearing, the defendant testified that he had had contact with law enforcement and that he faxed a copy of the citation he received for driving with a suspended license to his probation officer.  At the time of the violation of probation hearing the driving with a suspended license charge was still pending.  A copy of the citation was submitted into evidence.  When ask if he was driving on the date of the citation the defendant asserted his Fifth Amendment right to remain silent and did not answer.  The defendant’s probation officer testified that the defendant had notified him of the contact with law enforcement, and that he had requested to see the citation to see if it was a criminal or civil citation.   Upon consideration of this evidence the trial court ruled that the defendant was in violation of his probation.  The defendant filed an appeal.

The appeals court ruled the State did not show that the defendant committed any new crime, but instead, simply submitted evidence that the defendant had contact with a law enforcement officer.  It is improper to revoke probation based solely upon proof that the probationer had been arrested.  The State did not show that the elements of the crime of driving while license suspended, revoked, canceled, or disqualified were met.  See section 322.24(2), Florida Statutes (2010). License suspension, knowledge of the license suspension, and actual driving are the requisite elements of the crime of driving while license suspended.  The State did not prove that the defendant’s license was suspended, that the defendant had knowledge of the suspension, or even that the defendant had been driving on the date of the alleged infraction.  The defendant’s admission to having contact with law enforcement and receipt of a traffic infraction were not sufficient to show that the defendant violated any law. Consequently, since the evidence was insufficient to prove that a crime was committed, it was an error for the trial court to find the defendant to have violated probation.

See Prater v. State, 161 So.3d 489 (Fla. 5th DCA 2014)

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The defendant was placed on probation for drug possession.  The defendant was charged with violating probation for purchasing/possessing pseudoephedrine.  The defendant filed a motion to dismiss the violation of probation because the rules of the defendant’s probation said the defendant could not take any over counter medication containing pseudoephedrine and the violation of probation affidavit alleged that the defendant “purchased/possessed” pseudoephedrine.  The probation rules prohibited the defendant from taking any over the counter medication containing pseudoephedrine but the defendant was charged with violating his probation by purchasing/possessing pseudoephedrine.  Therefore, according to the probation rules the defendant could purchase over the counter medication containing pseudoephedrine and could possess over the counter medication containing pseudoephedrine the defendant just could not “take” any over the counter medication with pseudoephedrine.  The motion to dismiss was denied by the trial court.  After a violation of probation hearing the trial court found the defendant in violation of probation and sentenced the defendant.  The defendant appealed.

The appeals court stated that an affidavit for violation of probation must allege the basic facts concerning the alleged violation such as its nature, time and place of occurrence.  According to the appeals court because the violation of probation affidavit alleged that the defendant “purchased/possessed pseudoephedrine and only “taking” any over the counter medication containing pseudoephedrine was prohibited by the defendant’s probation rules the defendant was improperly found to be in violation of probation by the trial court.  The appeals court stated that the trial court improperly based the violation of probation on a charge that was not alleged in the violation of probation affidavit.

See Little v. State, 143 So.3d 465 (Fla. 5th DCA 2014)

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The defendant was placed on probation.  The State alleged that the defendant violation his probation by committing a new law violation, loitering and prowling.  After a violation of probation hearing the trial court found the defendant in violation for committing the new law violation of loitering and prowling and sentenced the defendant.  The defendant appealed the trial court’s finding of a violation of probation.

At the violation of probation hearing the State only introduced evidence from the electronic monitoring device that the defendant was wearing that the defendant had been in or near a neighbors yard.  According to section 856.021, Florida Statute (2014) it is loitering and prowling and therefore it is unlawful for “any person to loiter or prowl in a place, at a time or in a manner not usual for law abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity”.  Since the State failed to prove the crime of loitering and prowling at the violation of probation hearing it was unlawful for the trial court to find the defendant violated probation.

See Acevedo v. State, 200 So.3d 196 (Fla. 5th DCA 2016)

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When a defendant is to be sentenced upon a revocation of probation and prior to that revocation of probation the trial court’s jurisdiction over one or more of the originally sentenced offenses has expired, may the offenses over which the trial court no longer has jurisdiction be scored as additional offenses?  According to the Florida Supreme Court “Offenses over which the trial court no longer has jurisdiction cannot be scored as additional offenses during a sentencing proceeding following a violation of probation because they do not fit the definition of “additional offenses” set out in section 921.0021, Florida Statutes (1999).”

See Sanders V. State, 35 So.3d 864 (Fla. 2010)

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The defendant was placed on probation and as a condition of probation ordered to pay restitution. The defendant was ordered to make monthly restitution payments.  A violation of probation affidavit was filed alleging that the defendant failed to make the required monthly restitution payments and was behind in paying cost of supervision as well.  At the violation of probation hearing one probation officer testified the defendant was informed of the terms of his probation, including both the restitution payment obligation and the obligation to pay a monthly cost of supervision.  A second probation office testified that the defendant was behind on both restitution and cost of supervision.  The defense presented no witnesses. The trial court found the defendant in violation of probation and sentenced the defendant.  The defendant appealed the trial court’s violation of probation finding.

The Florida Supreme Court found that before a probationer can be imprisoned for failure to pay a monetary obligation such as restitution, the trial court must inquire into a probationer’s ability to pay and make an explicit finding of willfulness based on the greater weight of the evidence.  Further, in all probation revocation proceedings in which the violation alleged is a failure to pay a monetary obligation as a condition of probation, the State must present sufficient evidence of the probationer’s willfulness, which includes evidence on the ability to pay, to support the trial court’s finding of willfulness.  After evidence of willfulness is introduced by the State, the burden may then be properly shifted to the probationer to assert an inability to pay.  However, it is unconstitutional to require the probationer to prove inability to pay by clear and convincing evidence, a burden higher than the burden required of the State to prove the violation of probation.

See Del Valle v. State, 80 So.3d 999 (Fla. 2012)

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