VIOLATIONS OF PROBATION. By: Senior Judge David A. Demers Sixth Judicial Circuit

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1 VIOLATIONS OF PROBATION By: Senior Judge David A. Demers Sixth Judicial Circuit

2 INTRODUCTORY COMMENTS I. Purpose of outline. This outline was prepared for two purposes: (1) to provide a structure for courses dealing with violation of probation and (2) to provide a ready and useful source for regular use in most proceedings involving violation II. Course objectives. The objectives of this part of the program, which is on violations of probation and community control, are as follows: 1. The participants will have a better understanding of the nature of violation proceeds and the rules that apply. 2. The participants will be able to more effectively handle all aspects of violation proceedings. 3. The participants will be able to discuss ways to properly address issues which arise in violation of probation hearings. III. Comments on use of outline. An effort has been made to provide authorities that are still good law, but that cannot be guaranteed due to the volume of material. For that reason it is wise to shepardize or key cite any decisions upon which the user intends to rely and check the latest version of statutes and rules. The outline is designed to provide in some detail the standards that apply to violations of probation. It contains examples of factual situations which have been considered by the courts on the theory that these examples will aid the participants in future decisions. The material is extensive, but not comprehensive. Any comments that might improve this material or course are welcomed. Such comments can be provided by letter or by telephone. Senior Judge David A. Demers address: Cell phone:

3 TABLE OF CONTENTS Controlling Statute and Rule....1 Change in sentence with VOP...1 Modification of sentence without following VOP procedure Extension of term of probation without VOP Jurisdiction...18 Invoking jurisdiction...18 Period during which violation may be filed and amended and tolling Procedures for violations...42 Proceedings: statutory language...42 Arrest...42 First appearance...43 Notification letter...44 Continued supervision...44 Violation admitted...45 Violation not admitted...45 Proceedings in place where arrested Pretrial release for sexual offenders and predators Pretrial release for certain violent offenders. (Anti-murder act) Nature of proceeding...53 Sufficiency of affidavit Rights of defendant Right to be present...60 Bail...61 Notice and right to public and fair hearing Hearing before a neutral and detached body Competency...79 Guilty or nolo plea to charge...80 Rules of discovery...81 Freedom from unlawful searches...83 Right to Confront and Cross-Examine witnesses The privilege against self-incrimination Miranda rights...96 The speedy trial rule...98 Right to counsel...99 Fifth amendment right to remain silent Double Jeopardy Clause & Related concepts Burden of proof Rules of evidence Hearsay...111

4 Records Absence of records Judicial notice Defendant s silence, admissions and testimony Circumstantial evidence rule Affidavits and other documents Matters not alleged in affidavit Sufficiency of evidence to justify revocation Validity of condition/waiver Examples concerning waiver and invalid conditions Establishing elements necessary for revocation Notice of proscribed behavior Violation of a court imposed condition Willfully violated the conditions Willfulness: Ability to pay Statutory language Willfulness: conditions unrelated to payment A substantial noncompliance Reports, procedures and technical requirements Completion of counseling and programs Principles relating to violations for commission of new crimes Violation based solely on an allegation of an arrest Crime different from the one alleged Charges that were dismissed Nolle prosses Proof based on plea to new charge or confession Proof based on other evidence Acquittal of new offense Proof of drug charges Proof of other charges Sufficiency of proof to establish commission of act or omission to act Intoxicants and drugs Violation of restrictions regarding travel, movement, and association Failure to comply with reporting and procedural requirements of probation Completion of specific requirements Testing Employment Judgment & sentence for violation Form and procedure Sentencing options Revoke probation & impose any sentence that could have originally been imposed...312

5 Misdemeanors Split sentences involving suspended prison time Youthful offenders Sentencing on financial matters Habitual offender treatment Modify, extend, or add probation or community control Continue probation and reimpose conditions or impose new conditions to original term or to extend term Rule & contain provisions relating to sentencing License suspension Credit for time served Place where time was served Credit for jail time prior to sentencing or while awaiting an appeal Credit for time served on original sentence against time imposed for a violation Original prison term on one offense and probation on another Time served originally as a condition of probation Credit for time served on unrelated charge Credit for probation, community control, and jail served prior to revocation against probation and community control Credit for time spent on probation or community control against jail or prison Entitlement to credit for good time and gain-time Statutory language Enforcement by Contempt

6 I. Controlling Statute and Rule. A. Fla. Stat B. Fla. Rules of Criminal Procedure, Rule II. Change in sentence with VOP. A. Modification of sentence without following VOP procedure. 1. The defendant admitted violating probation and the trial judge sentenced him to continue on probation. The court told the defendant before sentencing him that if his drug test was positive the net day he would give him 15 years in prison. The defendant still wanted to admit the violation. Later on the cases were recalled and the defense attorney asked the court to give him 30 days to get clean because he might not be able to past the drug tests. The judge refused and changed the sentence to 34.5 months prison. On appeal the course reversed. Freeman s sentencing for violation of his probation was complete when the trial court continued him on probation and the proceedings concluded. At that point, jeopardy attached, and Freeman could not legally be sentenced again to harsher sentences. (Citation omitted) The fact that apparently a relatively brief period of time may have passed before the cases were recalled does not affect the attachment of jeopardy, (citation omitted) and neither does the fact that Freeman admitted that he might test positive the next day. Freeman v. State, 980 So.2d 629 (Fla. 2d DCA 2008). 2. The Freeman decision was distinguished where (1) defendant was arrested for a VOP and admitted it; (2) the court reinstated his probation, modifying several conditions; (3) defendant was implicated in other crimes that were not brought up; (4) after reinstatement of probation, deputies arrested the defendant for crimes committed a couple of months before the reinstatement; (5) a new affidavit of VOP was then filed and subsequently amended to allege VOPs based on those crimes; (6) the trial judge dismissed the affidavit because the charged violations happened before reinstatement. The court reversed because it was clear that despite the use of the word reinstatement, this was actually a continuation of the earlier term of probation when the new crimes were committed. The distinguishing feature of Freeman from Mr. Daniels case is that the circuit court in Freeman, upon Mr. Freeman s anticipatory admission of VOP, revoked his probation and ordered a harsher sentence without having before it a new sworn affidavit or proof of VOP. In Mr. Daniels case, he never anticipatorily admitted the new VOP charges, and the State had filed a new 1

7 sworn affidavit of VOP that was before the court. The court in Freeman added an uncharged VOP onto a previously filed, admitted, and disposed of VOP charge. See also Gearhart v. State, 885 So.2d 415, 416 (Fla. 5th DCA 2004) (stating that a court may enhance or extend probation during the probationary period following a hearing and upon proof of a violation. However, in the absence of a noticed hearing and such proof, an extension of the probationary term violates the double jeopardy prohibition against multiple punishments for the same offense. ). In contrast, in Mr. Daniels case, an entirely new violation of probation proceeding was commenced in the proper way-with a new sworn affidavit of VOP during a probationary period that was still ongoing, a probationary term that had never been completed, revoked, or terminated in any way. State v. Daniels, 33 So. 3d 749 (Fla. 2d DCA 2010). 3. The trial judge failed to impose standard conditions of probation until years after the original sentence. The court subsequently revoked defendant s probation for violating one of the conditions. On appeal, the court reversed. Florida Rule of Criminal Procedure 3.800(c) (1999) authorizes a court to modify a legally imposed sentence within sixty days of its imposition. Here, the modification occurred years after the sixty-day time period for modification had expired. In Kiriazes v. State, 798 So.2d 789, 794 (Fla. 5th DCA 2001), the court concluded: The trial court s initial failure to impose the standard conditions of probation mandated by section (5) resulted in an incomplete, but not illegal, sentence. The oversight is uncorrectable. More than sixty days had passed since the original sentence was imposed and, thus, under rule 3.800(c), the trial court had no jurisdiction to correct the error. Accordingly, we reverse the order revoking Mr. Poplar s probation for violating condition 21 and direct that he be reinstated to supervision. Poplar v. State, 842 So.2d 902 (Fla. 2d DCA 2003). See also State v. Woodard, 866 So.2d 120 (Fla. 4th DCA 2004)(a motion filed pursuant to Rule 3.800(c), must be heard within 60 days after the imposition of sentence, and that is solely the movant s responsibility)(the rule was subsequently changed to allow the motion to ruled on 90 days from the date the motion is filed or such time as agreed by the parties or as extended by the trial court to enter an order ruling on the motion. ) 4. Within 60 days of imposition of the modification, it was proper for the court to impose mandatory electronic monitoring as a condition of probation when probation was modified as a result of a charged violation, where the defendant was a sexual offender who was on probation for a felony driving charge. The double jeopardy clause did not bar imposition of the condition. Fields v. State, 968 So.2d 1032 (Fla. 5th DCA 2007). See also Harroll v. State, 960 So.2d 797 (Fla. 3d DCA 2007). 2

8 5. The defendant challenged the modification of probation requiring that he wear an electronic monitoring device as an additional condition of his probation... After the sentencing hearing the probation officer suggested to the trial court that it may have erred in failing to require electronic monitoring as a condition of Appellant s probation because Appellant had a previous conviction for lewd or lascivious exhibition under section (7)(c), Florida Statutes. Subsequently, the trial court entered an order modifying Appellant s sentence to include electronic monitoring as an additional condition of probation. Because probation is considered a sentence in Florida, an enhancement or extension of the conditions of probation after the conclusion of the sentencing hearing generally constitutes a violation of the double jeopardy prohibitions of the United States and Florida constitutions. See Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994); Justice v. State, 674 So.2d 123, 126 (Fla.1996). Section sets forth the proper procedure for enhancing the conditions of probation. Under section , probation may not be enhanced until the probationer has been formally charged with a violation of probation, brought before the court, and advised of the charge. Lippman, 633 So.2d at 1064; Eddie v. State, 933 So.2d 570, 571 (Fla. 1st DCA 2006). Additionally, the double jeopardy protection prohibits enhancement of probation conditions without proof of a violation of probation. Lippman, 633 So.2d at However, in Harroll v. State, 960 So.2d 797, 798 (Fla. 3d DCA 2007), the Third District recognized that a trial court may modify a sentence of probation to include statutorily mandated conditions of probation without violating the Double Jeopardy Clause. Specifically, the Harroll court recognized that where section requires a probationer to be electronically monitored, a trial court does not err in modifying the probationer s sentence to correct the omission of this required condition of probation. See id. The Harroll court s holding rested on the sound premise that a defendant is not placed in double jeopardy when the trial court simply corrects a legally invalid sentence. See id. (citations omitted)... Appellant s previous conviction of lewd or lascivious exhibition did not require the trial court to impose electronic monitoring as a condition of probation under section (3)(c). Because the additional condition was not statutorily mandated, the trial court placed Appellant in double jeopardy when it modified the terms of Appellant's probation after the close of the sentencing hearing. Burkhart v. State, 974 So.2d 1203 (Fla. 1st DCA 2008). See also J.D.D. v. State, 12 So.3d 820 (Fla. 1st DCA 2009)( Absent proof of a violation, a trial court cannot alter an order of probation by revoking or enhancing the terms thereof. To do so constitutes fundamental error.) 3

9 6. Without proof of a violation of probation, double jeopardy bars revoking probation or enhancing the term of probation. This case was not a VOP. J.H. v. State, 71 So.3d 202 (Fla. 5th DCA 2011). 7. Two affidavits of violation were filed, but the court found the defendant not guilty on the first one and the state withdrew the second one. Prior to the hearing, the court received a letter from the therapist who was working with the defendant asking these modifications: (1) extension of probation from two to seven years; (2) completion of the Mentally Disordered Sex Offender program; (3) prohibiting the defendant s participation in any job or activity where he would wear a police-type uniform or use police-type equipment; and (4) restricting the defendant's contact with his immediate family. The judge entered the order modifying the defendant s probation in accord with the request, except that the judge only restricted the defendants contact with the minor victim and minor siblings, not with the defendant s entire family. The defendant was later violated for having contact with one of the siblings and sent to prison. He filed a motion for postconviction relief. The Supreme Court held that where no violation of probation has been filed and the provisions of have not been followed, an order modifying probation by prohibiting contact between probationer and victim or victim s minor siblings constituted an additional punishment proscribed by the double jeopardy clause regardless of the reason for the modification. The Court found that all of the added conditions created additional hardships and were more restrictive and thus violated the double jeopardy clause. The double jeopardy protection against multiple punishments includes the protection against enhancements or extensions of the conditions of probation. Lippman v. State, 633 So.2d 1061 (Fla. 1994). See also V.M.S. v. State, 43 So.3d 938 (Fla. 4th DCA 2010)(condition that offender attend non-public school imposed after probation was imposed and without a pending violation, violated the Double Jeopardy Clause). 8. Where there is no pending violation of probation, the court may rescind or modify any terms and conditions pursuant to (6), but the court may not add a new condition or increase the term of probation. Clark v. State, 579 So.2d 109 (Fla. 1991). See also Garcia-Medina v. State, 2013 WL , 38 Fla. L. Weekly D1985 (Fla. 2d DCA Sep 18, 2013)(the court increased sentence from 18 months probation to 5 years without record proof of compliance with increase was barred by double jeopardy; and a subsequent violation was invalid). 9. The defendant was on probation with a special condition that he seek family counseling. On motion of the state without a violation of probation the 4

10 counseling was changed to anger management. The court also added the condition that the defendant have no contact with the victim. On appeal, the court held that the change of counseling was a valid modification of an existing condition pursuant to (5). The addition of the condition prohibiting contact with the victim was an invalid enhancement. Zepeda v. State, 658 So.2d 1201 (Fla. 5th DCA 1995). 10. In this case, the defendant was ordered to undergo a Substance Abuse Evaluation and complete any treatment/education program recommended by the Evaluator at [her] own expense. Several years later the probation officer filed an affidavit of violation alleging a violation of this condition because she refused to get in-patient alcohol treatment as required by her probation officer. Three days later a hearing was held. The defendant appeared with counsel. The prosecutor and the defense attorney announced an agreement in which the VOP was withdrawn, and she agreed to these three additional terms: (1) the defendant would go into an alcohol detoxification center and stay there until released by the program authorities; (2) the defendant would follow any treatment recommended by the program; (3) the defendant would not consume any alcohol at any time. The trial judge approved the agreement. Later the defendant was charged with a violation of probation based on two of the new conditions. She was convicted. At the violation hearing she made no argument concerning the legality of the new conditions. On appeal, the defendant argued that the new conditions were illegal because they were imposed without a finding of a violation of probation. The state argued that she waived this point by the failure to object prior to the appeal. On appeal the court considered whether the defendant had waived the right to attack the conditions on direct appeal and whether the new conditions violated the Double Jeopardy Clause based on Lippman v. State, 633 So.2d 1061 (Fla. 1994). The court found that the alleged violation of Double Jeopardy was fundamental error and could be raised for the first time on appeal. The test, according to Lippman, as to whether a modification is really an enhancement, turns on whether the change is more restrictive that the original condition. In this case, the state argued that the new conditions were mere adjuncts of the original requirement that the defendant undergo a substance abuse evaluation and follow treatment recommendations. A condition allowing the PO to require in-patient alcoholism treatment through the entire seven-year term of probation is more restrictive than a requirement that an offender undergo a substance abuse evaluation at the beginning of probation and follow any treatment then recommended by the evaluator. (emphasis by the court). Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996). 11. In 1993, the defendant was placed on fifteen years of probation from two 5

11 counts of lewd assault. The terms of the probation included, inter alia, that Gerber have no contact with children under eighteen unless supervised by an adult having knowledge of the charges, that he not leave the county without the consent of the probation officer, and that he allow the probation officer to visit his home and his employment. The order also provided that the probation officer not contact employer. Years later, a new probation officer demanded restrictions on travel that had never been followed. Thus, the defendant moved to modify the conditions so that he could travel freely for both business and pleasure purposes... Ultimately the court ordered that Gerber was permitted to continue to work as an independent contractor without his clients being told of his case or his status. In addition, the court ruled that Gerber may not visit any home or an employer/client for any purpose, business, social, or otherwise, without being accompanied by his wife or some other adult fully aware of this case and of Defendant's status as a Registered Sexual Offender. On appeal, the court ruled that the court s order violated the prohibition against double jeopardy. The Florida Supreme Court has unequivocally held that the double jeopardy protection against multiple punishments includes the protection against enhancements or extensions of the conditions of probation. (citation omitted) Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Without proof of a violation, the court cannot change an order of probation by enhancing the terms... The test, according to Lippman, as to whether a modification is really an enhancement, turns on whether the change is more restrictive than the original condition. Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996)... As the court plainly held in Lippman, the trial court s decision to couch the order in terms of a modification, rather than as an enhancement, has no bearing on the true nature of the adjustment in the terms of a probation order. The terms of the original probation order included a provision that Gerber have no contact with children under eighteen unless supervised by an adult having knowledge of the charges and disposition. However, there were no limitations on his ability to visit the home of employers/clients... [T]he terms added to the probation are clearly more restrictive than those in the original probation order. As a result, the trial court impermissibly enhanced the terms of Gerber's probation and that order is hereby reversed. Gerber v. State, 856 So.2d 1113 (Fla. 4th DCA 2003). 12. The state also argued that the defendant was estopped from arguing the issue of illegality because she agreed that in return for having the violation of probation withdrawn the new terms would be added. On appeal, the court relied on Clark v. State, 579 So.2d 109 (Fla. 1991). In Clark the defendant 6

12 signed a waiver of rights and motion to modify community control two days after the sentencing hearing. In Clark, the Court said Absent proof of a violation, the court cannot change an order of probation or community control by enhancing the term thereof, even if the defendant has agreed in writing with his probation officer to allow such a modification and has waived notice and hearing. This principle applied to the case at bar even though a violation of probation had been filed. Clearly, the principle holding of Clark is that an offender is not estopped from challenging an enhancement of probation simply because the offender agreed to it. The court must find a violation of an original condition upon due proof before probation may be enhanced during its term to add new requirements. No agreement by the probationer to the enhancement without a violation estops an offender from raising the double jeopardy infringement. Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996). 13. The defendant was originally sentenced on sex related offenses to probation with a special condition that he undergo a mental health evaluation and follow any recommended treatment. As a result of the evaluation a psychologist recommended three therapy sessions. For financial reasons the defendant was sent to another counselor. It was his policy in all such cases to recommend that the offender undergo therapy throughout the term of probation. The defendant attended five weekly sessions and then stopped in the belief that he had complied with that requirement of his probation. The counselor advised the probation officer that the defendant needed to continue in counseling. The probation officer advised the court in a letter of the situation. The trial judge responded by stating that the defendant was required to continue in mental health counseling and three sessions would not constitute compliance. The defendant s subsequent failure to continue counseling resulted in the filing of an affidavit of violation alleging a violation of condition 8, which was that the defendant comply with the instructions of his probation officer. The trial judge conducted a hearing, but did not expressly find that the defendant had violated his probation. Instead the judge modified the condition of probation by requiring that the defendant attend weekly meetings with the designated counselor. This in effect required that the defendant attend sessions throughout the term of his probation. On appeal, the court reversed. [U]nder these facts the trial court s response to the probation officer s letter and, more importantly, its entry of the order of modification adding Special Condition 16 constitute an improper enhancement, not modification, of appellant s original sentence in violation of the double jeopardy clause of the Fifth Amendment of the United States Constitution and article I, section 9 of the Florida Constitution... The added condition enhanced appellant s original sentence by imposing an additional hardship in the absence of 7

13 a violation of Special Condition 12 [concerning mental health counseling]. Delancey v. State, 653 So.2d 1062 (Fla. 4th DCA 1995). See also C.H. v. State, 850 So.2d 675 (Fla. 4th DCA 2003). 14. The defendant agreed as a part of a plea bargain that it would be a condition of his probation that he not have any unsupervised contact with any minor. That condition was not announced on the record nor was it included in the written order. Long after the passage of 60 days from the imposition of the sentence the state filed a motion to correct the sentence because the defendant agreed to it and it should have been included. The defendant objected. On appeal, the court ruled that the sentence was not illegal; therefore, it could not be corrected after the passage of 60 days from the imposition of the sentence. Music v. State, 655 So.2d 231 (Fla. 1st DCA 1995); See also Wilson v. State, 846 So.2d 1201 (Fla. 4th DCA 2003); Jackson v. State, 825 So.2d 1021 (Fla. 1st DCA 2002); McLemore v. State, 638 So.2d 610 (Fla. 1st DCA 1994) [same ruling concerning the same situation as to restitution agreed to as part of a plea bargain]. 15. The 60 day period is not jurisdictional. If the defendant fails to object to the motion, the time period is waived. Metellus v. State, 817 So.2d 1009 (Fla. 5th DCA 2002), affirmed, 900 So.2d 491 (Fla. 2005). 16. Where the defendant was placed on community control, he subsequently signed a waiver of rights and motion to modify community control. The waiver advised the defendant that he had a right to counsel, and a hearing before the court. It was signed out of court. By signing it the defendant agreed to the addition of a condition requiring him to enter and complete a program at a certain institution. The judge signed an order adding that condition. Later the defendant was found in violation of that condition and argued that it was improperly imposed. On appeal, the Court held that provides the sole means for placing additional terms on a previously entered order of probation or community control. Before either may be enhanced, either by extension of the period or by addition of terms, a violation... Must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section Absent proof of a violation, the court cannot change an order of probation or community control by enhancing the terms thereof, even if the defendant has agreed in writing with his probation officer to allow such a modification and waived notice and hearing. The Court did point out that existing conditions may be modified pursuant to (7). Clark v. State, 579 So.2d 109 (Fla. 1991). See also Garcia-Medina v. State, 2013 WL , 38 Fla. L. Weekly D1985 (Fla. 2d DCA Sep 18, 2013)(where the court increased sentence from 18 months probation to 5 years without 8

14 compliance with increase was barred by double jeopardy; and a subsequent violation was invalid; failure to object until the subsequent violation did not constitute a waiver); Holcombe v. State, 553 So.2d 1337 (Fla. 1st DCA 1989); Ford v. State, 553 So.2d 1340 (Fla. 1st DCA 1989); Dover v. State, 558 So.2d 101 (Fla. 1st DCA 1990). 17. Pursuant to , the trial judge has jurisdiction during the term of probation to modify any condition previously imposed. Thus, prohibition is not an appropriate remedy to keep the court from increasing restitution. The Court did not address the question of whether such an increase was otherwise proper; although, it did note that if the amount was part of a plea agreement and the defendant had made partial payment the trial court might be estopped from increasing it. Woods v. Angel, 556 So.2d 820 (Fla. 5th DCA 1990). But see the ruling by this same court in Brenatelli. 18. The trial court failed to originally make it a condition of defendant s probation that he have no contact with his wife. The trial court subsequently amended the conditions of probation to include a provision limiting contact with the wife even though there had been no violation. On appeal, the court held that the trial judge lacked authority to modify the conditions of probation. Brenatelli v. State, 555 So.2d 1315 (Fla. 5th DCA 1990). 19. The original order of probation and community control provided that the court retained jurisdiction to place the defendant in the probation and restitution center upon recommendation of the probation officer without a violation of probation or community control. Five months later the court ordered the defendant to reside at the probation and restitution center. He was subsequently violated for failing to comply with that condition. The defense argued unsuccessfully that the condition was improperly added. On appeal, the Court agreed with the defense based on the decisions in Clark v. State, 579 So.2d 109 (Fla. 1991) and Rock v. State, 584 So.2d 1110 (Fla. 1st DCA 1991). Pursuant to in the absence of a pending violation of probation it is improper for the court to modify the terms and conditions of probation by adding new terms rather than changing previously imposed terms. This is true even if the defendant has waived the right to notice and hearing. Thus, the condition in the original sentence did not authorize the court to initiate such a modification. Russo v. State, 603 So.2d 1353 (Fla. 1st DCA 1992). 20. It was improper to add a condition that the defendant go to the restitution center without a hearing even though the defendant agreed. His community control could not be violated on that basis. Sweeny v. State, 580 So.2d 337 (Fla. 4th DCA 1991). 9

15 21. The conditions of probation may be modified during the term of probation but there is no authorization for an extension. An agreement by the defendant to extend probation without a hearing or advice of counsel is a nullity. State v. Schafer, 583 So.2d 374 (Fla. 4th DCA 1991). 22. The court modified the defendant s conditions of probation on a written waiver and agreement by the defendant. This condition was invalid because there was no compliance with Revocation for violation of such a condition is error. Rock v. State, 584 So.2d 1110 (Fla. 1st DCA 1991), rev'd on other grounds, 605 So.2d 456 (Fla. 1992). See also Weidmann v. State, 582 So.2d 1251 (Fla. 2d DCA 1991). 23. It is improper for the trial judge to add conditions of probation without a judicial determination that the defendant violated his probation. Malone v. State, 632 So.2d 1140 (Fla. 4th DCA 1994). 24. The defendant was charged with a violation of probation. At a hearing the defendant appeared with her attorney. The attorneys announced an agreement in which the VOP was withdrawn and the defendant agreed to three new conditions. Subsequently, a new VOP was filed accusing her of violating two of these new conditions. The defendant attacked the validity of the new conditions for the first time on appeal from the VOP. The court relied upon Lippman v. State, 633 So.2d 1061 (Fla. 1994). In that case, as in the case at bar, the VOP was withdrawn in return for agreement to new conditions. There, as here, the defendant did not attack the new conditions at the time they were imposed. This court relied on the following language from Lippman: The prohibition against double jeopardy is fundamental.... As this Court concluded in State v. Johnson, 483 So.2d 420,423 (Fla. 1986), the failure to timely raise a double jeopardy claim does not, in and of itself, serve as a waiver of the claim. The court in this case went on to conclude that the issue can be raised for the first time on direct appeal. Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996). 25. The defendant was ordered to pay a fine, but it was not made a condition of probation. The probation officer ordered that he make monthly payments on that fine. When the defendant failed to do so, the probation officer filed an affidavit of violation. The trial judge modified the probation to make payment of the fine a condition of probation. On appeal, the court found that this was an improper modification of probation. Absent proof of a violation of probation, a trial court cannot modify an order of probation by enhancing its terms. Nichols v. State, 672 So.2d 825 (Fla. 2d DCA 1995). 10

16 26. To change a condition of probation so that the burden on the defendant is increased or add conditions, the court must find that the defendant committed a violation of probation and follow the procedure in , Fla. Stat. (1997). If the court fails to comply with these requirements, any change in the conditions of probation resulting in additional hardships or restrictions constitutes additional punishment. The court has no authority to make such changes even with the defendant s consent and attempted waiver of double jeopardy protections. The double jeopardy clause bars them regardless of the reason. Casterline v. State, 703 So.2d 1071 (Fla. 2d DCA 1997); Martin v. State, 691 So.2d 1204 (Fla. 4th DCA 1997). 27. In 1991 the defendant was charged with aggravated assault and a violation of probation based on that new crime. The trial judge found the defendant not guilty of the violation. The defendant asked to be released on his own recognizance pending resolution of the aggravated assault. The state had no objection, but they requested that the terms of his probation be changed to prohibit contact with minors. The defense counsel objected; however, he gave in when the trial judge indicated that his request for release would be considered at a future date. The court said, So, it would be without objection by your client to modify the probation to require that he have no contact with minor children, that is anyone under the age of eighteen, without the presence of another responsible adult. Thus, the court entered an order modifying his probation by adding that condition. In 1996 the defendant s probation was revoked for violating that new condition. His motion for postconviction release was denied. On appeal, the court reversed. The court found that the new condition was an enhancement. While it is true that the trial court has the right to rescind or modify terms and conditions of probation at any time pursuant to section (5), Florida Statutes (1991), [a]bsent proof of a violation, the court cannot change an order of probation by enhancing the terms. The court also stated that probation is a sentence and double jeopardy bars enhancements or extensions of probation. Furthermore, when a nonviolating probationer agrees to the enhancement of the terms of probation, he is not estopped from, raising the double jeopardy infringement... The prohibition against double jeopardy... has not been waived by the failure to raise this issue on appeal of the original imposition of the condition or by failure to appeal the subsequent revocation of probation. The court ruled that the 1991 modification was a nullity and the defendant s probation could not be violated in 1996 for a violation of that condition. Casterline v. State, 703 So.2d 1071 (Fla. 2d DCA 1997). 28. The defendant could not be violated for failure to comply with curfew 11

17 because it was imposed after the imposition of probation; therefore, it was an enhancement in violation of the Double Jeopardy Clause. The defendant was accused of violating probation, but that charge was dismissed and he was told to enter a treatment program. Until a bed was available he was to abide by a curfew. That requirement was imposed after dismissal of an affidavit of violation, but not as a result of a finding of violation. Maddox v. State, 97 So.3d 332 (Fla. 2d DCA 2012). 29. The trial judge improperly modified the defendant s community control by imposing a six-month jail sentence after the filing of an affidavit. On appeal, the court found that this was an improper enhancement. A trial court may at any time modify community control conditions it has previously imposed but cannot enhance the penalty or add new conditions, as it did with Garvison s six-month jail sentence. See (6), Fla. Stat. (1997). Even though Garvison agreed to the six-month jail sentence, this does not cure the error. Apparently, the trial judge never actually found that there was a violation. Garvison v. State, 775 So.2d 340 (Fla. 2d DCA 2000). 30. Originally, it was a condition of the defendant s probation that he not have unsupervised contact with children under sixteen years of age. At the time of the sentence the defendant was living with his wife and three children. He continued to do so. Later a new probation officer asked for clarification as to whether the condition also applied to his own children. The trial judge ordered that the restriction did apply to the defendant s children. Subsequently, the probation officer determined that the defendant was still living with his wife and three children. The officer filed a violation and the trial judge revoked the defendant s community control. On appeal the court reversed. Considering the fact that appellant was not charged with violating the original condition, along with the fact that the court referred to the action it was taking as a modification, we conclude that the court had not originally intended the condition to apply to appellant s own children. The modification was, accordingly, an enhancement, because it was more restrictive than the original condition, and thus violates the prohibition against double jeopardy. Jean v. State, 711 So.2d 1315 (Fla. 4th DCA 1998). 31. Changing the person who is to receive restitution without changing the amount, is a permissible modification of the conditions of probation. Wanner v. State, 746 So.2d 478 (Fla. 2d DCA 1999). 32. A trial court must first determine that there has been a violation of probation before it can enhance the terms and conditions of probation. 12

18 Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994). An enhancement of probation where there is no proof of a violation of probation is a violation of the double jeopardy prohibition against multiple punishments for the same offense. Id.; see also Cole v. State, 745 So.2d 1001, 1002 (Fla. 2d DCA 1999). Under Lippman, the test as to whether the modification of a condition of probation is an improper enhancement turns on whether the change is more restrictive than the original condition. Lippman, 633 So.2d at An original condition of Blair s probation was that he not use intoxicants to excess. The added condition, special condition two, was that Blair not consume or possess any alcoholic beverages. Because special condition two was more restrictive than the original condition and it was imposed even though the trial court found that Blair had not violated his probation, it constitutes an illegal enhancement. See Waldon v. State, 670 So.2d 1155, 1159 (Fla. 4th DCA 1996). Blair v. State, 805 So.2d 873 (Fla. 2d DCA 2001). 33. Because of Blair s knowledge of the conditions of his probation, his repeated failure to raise the issue of the illegal enhancement in the trial court or in any prior appeal, and his plea of guilty to a violation of probation in exchange for the continuation of his probation, we conclude that Blair waived his double jeopardy claim and cannot now complain of the 1998 enhancement of the conditions of his probation. We thus affirm the finding that Blair violated his probation due to the use of alcohol. Blair v. State, 805 So.2d 873 (Fla. 2d DCA 2001). 34. Section (2), Florida Statutes, provides that a trial court may rescind or modify at any time the terms and conditions theretofore imposed by it upon the probationer. However, absent a violation of probation or community control, it may not add new conditions or enhance the penalty. Wesner v. State, 843 So.2d 1039, 1040 (Fla. 2d DCA 2003). An enhancement of probation where there is no proof of a violation of probation is a violation of the double jeopardy prohibition against multiple punishments for the same offense. Blair v. State, 805 So.2d 873, 877 (Fla. 2d DCA 2001) (quoting *203 Lippman, 633 So.2d at 1064). Further, [u]nder Lippman, the test as to whether the modification of a condition of probation is an improper enhancement turns on whether the change is more restrictive than the original condition. Id. (citing Lippman). There was no affidavit of violation, but the trial judge changed the defendant s conditions. At the time of the hearing on the State s requested modification, Loncar s probation required that he have no contact with the victim or the victim s family and that he be subject to GPS monitoring by the Department of Corrections. These conditions would not have prevented Loncar from residing with his father in the newly purchased home. 13

19 However, the modification to prohibit him from residing within ten miles of the victim prevented him from residing with his father and, thus, was more restrictive than the probation conditions that were in effect. Because the circuit court did not find that Loncar had violated his probation, its modification of Loncar s probation to include a more restrictive condition violated double jeopardy. See Lippman, 633 So.2d at Loncar v. State, 27 So.3d 200 (Fla. 2d DCA 2010). 35. The defendant failed to complete the sex offender treatment program because of excessive absences and there was insufficient time left in the term of probation to complete the program. The DOC asked that the defendant s probation be extended for two years to allow for completion of... program. According to the author of the letter... the matter had been discussed with the defendant who was happy about the extension in lieu of revocation proceedings. A copy of the letter was not provided to the defendant nor was the defendant furnished with notice of the hearing set on the request. The trial court treated the letter as a motion to extend probation... conducted [a hearing] on the request... The defendant was not present. The trial judge ordered that the defendant s probation be extended until successful completion of sex offender treatment. But the court did not find that the defendant had violated his probation. Subsequently, the defendant s probation officer filed an affidavit of violation during this extended term. The defendant moved to dismiss on the grounds that the extension violated the Double Jeopardy Clause. The court reversed. The State argued that the defendant had waived his rights. The court stated that probation can only be extended pursuant to Chapter 948. In Clark, the Supreme Court held that before the probationary term can be extended, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section , Florida Statutes. 579 So.2d at The State argued that there was no error because the defendant verbally agreed with the DOC to an extension of the probationary term in lieu of revocation... T]he State maintains that here the evidence is that the defendant accepted the benefit of the extension and avoided revocation of his probation thereby effectively waiving any double jeopardy claim. The state relied upon the decision in Blair v. State where the court concluded: Because of Blair s knowledge of the conditions of his probation, his repeated failure to raise the issue of the illegal enhancement in the trial court or in any prior appeal, and his plea of guilty to a violation of probation in exchange for the continuation of his probation, we conclude that Blair waived his double jeopardy claim 805 So.2d at 878. The court rejected this argument because the defendant never received formal notice of the purported violation of probation, nor of the hearing on the request of DOC to extend probation... 14

20 Additionally, neither order extending probation reflects service upon the defendant. Since, the defendant wasn t properly noticed of the hearing where the court extended the term and there was no showing that he received the court s order, the court rejected the State s contention that the defendant waived the double jeopardy claim. The extension of probation here was improper. Accordingly, the revocation of probation, based on an affidavit filed after expiration of the original three year probationary term, was invalid. Gearhart v. State, 885 So.2d 415 (Fla. 5th DCA 2004). 36. Imposition of costs for the first time on resentencing was improper. Simpkins v. State, 841 So.2d 643 (Fla. 2d DCA 2003). 37. The defendant was placed on sex offender probation for commission of a lewd act on a child, a violation of section , Florida Statutes (2000). The act involved a teenage girl unrelated to the defendant. In the written probation order, the trial court imposed condition 16 as follows: If the victim(s) is/are under the age of 18, until successful completion of sex offender treatment, you shall have no unsupervised contact with children less than eighteen (18) years of age without the approval of the sentencing court. This condition is worded differently than the statutory condition contained in section (5)(a)(5), Florida Statutes (2000), which provides: If the victim was under the age of 18, a prohibition, until successful completion of a sex offender treatment program, on unsupervised contact with a child under the age of 18, unless authorized by the sentencing court without another adult present who is responsible for the child's welfare, has been advised of the crime, and is approved by the sentencing court. The defendant subsequently sought modification before completion of the program so that he could have unsupervised contact with his six-year-old son and his grandchildren. The trial judge concluded that she did not have the authority to grant the request until the defendant completed treatment. On review, the court reversed. We read the language of condition 16 and section (5)(a)(5) as prohibiting unsupervised contact with children under eighteen until after completion of the sex offender treatment program unless, prior to completion of the program, the trial court authorizes such unsupervised contact. We also note that pursuant to section (6), a trial court has the authority to rescind or modify the terms of probation or community control at any time, but absent a violation of probation or community control, it may not add new conditions or enhance the penalty. Wesner v. State, 843 So.2d 1039 (Fla. 2d DCA 2003). 38. The defendant asked to change a special condition of probation that required he live at the Avondale Manor assisted living facility. He wanted to change 15

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