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 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 Sentencing 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 Sentencing 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 Sentencing 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.
Look How Far We Have Come!
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:
Money problems force Florida lawmakers to redefine what constitutes a criminal offense
Clearwater probation office falls prey to more cutbacks
A tough economy could mean a get out of jail free card at the county jail
No one looking for Pinellas fugitives during budget cuts
Florida Supreme Court finds that under funding of Public Defenders Prevents effective representation
Citing budgetary woes and a need to cut spending, former Sheriff Jim Coats elected to eliminate the DUI Enforcement Unit
Capturing more cash... St. Petersburg adds additional red light cameras
Pinellas County Jail now accepting credit cards
Florida legislature proposes decriminalizing suspended license charges and substituting hefty fine with vehicle forfeiture
New law designed to cut number of juvenile arrests estimated to save taxpayers $157.8 million
Potential Legal Issues Raised by the Alternative Sentencing Program
A previous misdemeanor VOP alternative sentencing path in Pinellas County was found to be contrary to Florida law. Even though that program was was well intentioned and strongly supported by local private attorneys, the appellate court took issue with the method of imposing VOP sentences. 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. These include:
1. 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?
2. Could this factor 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 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.
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.
Call a Former State Prosecutor!
Free Consultation with a Lawyer
Pinellas / St. Pete / Clearwater Defense Lawyers
Related Web Links: