Sitting in Jail on a VOP Because Nobody Knows the Law

Everyone hates a know-it-all. Through some force of nature beyond explanation, know-it-alls are attracted to the probation and parole profession. I have no hard evidence of this, just hear me now and believe me later. What you’re about to read involves a probation officer making three separate violation accusations, all of which turn out to be bogus. It happens all the time, and your taxpayer dollars are being wasted. You could interpret such poor probation performance in two ways. First, some would say that these probation officers actually know the law, but out of spite, choose to violate citizens just to send them to jail. But I think it may also be true that probation officers simply don’t know the law. So, whether probation officers violate out of pure spite, or out of ignorance, is a discussion for another day. For now, let’s delve into the recent case of Messineo v. State. 2105 Fla.App. LEXIS 13904 (Fla. 5^th DCA Sept. 18, 2015).

Ms. Messineo pled to resisting an officer with violence and battery on a law enforcement officer (these go hand-in-hand, as you know). She violated her probation several times, but each time she was reinstated. For the violation we’re dealing with, her probation officer alleged that she failed to complete 40 hours of community service, failed to undergo a psychological evaluation, and possessed a prohibited weapon—a knife.

First up, Ms. Messineo was arrested on a new charge of possessing a concealed weapon, a pocketknife with a two inch blade. She was stopped for a traffic violation, and permitted the officer to search her purse. When the officer found the knife, she told the officer that she often walks alone at night and needs the pocketknife for protection. Is it legal for her to possess a two inch blade, even though probation prohibited her from carrying any sort of weapon while on probation? Well, that depends upon the definition of a “weapon”. Let’s review some basic Florida law here. What does Florida law say about pocketknifes? And, is any of this so complicated that a probation officer couldn’t have figured it out?

Florida law prohibits probationers from carrying weapons. Easy enough. Messineo carried a pocketknife, and the law governing pocketknifes comes from both the Florida Statutes and Florida case law. Even if a probation officer is too lazy to research case law, he/she could simply look at the Florida Statutes. The statute, found in Section 790.001(13), defines a “weapon” as “any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife”. (emphasis added). Ok, so you could be saying to yourself, gee, maybe a 2 inch blade doesn’t meet the definition of “common pocketknife”? Now, it’s ok for you to be confused here, but don’t think of yourself, think of the fact that a probation officer that is entrusted to know the laws governing a probationer’s conduct. Basically, Florida law states that “a three inch, partially serrated, curved single-edge blade with a pointed tip” is not a weapon—it is just a common pocketknife. D.J. v. State, 83 So. 3d 857 (Fla. 4^th DCA 2011). This is a pretty simple concept. Probationers can carry knifes that are under 3 inches. How hard is this to understand?

But wait, it gets worse, because the judge decided to jump in on the fun. The VOP judge ruled that, even though Ms. Messineo’s blade was too small to constitute a weapon that would violate her probation, the judge violated her anyway because she admitted to carrying the knife for self-defense. Fortunately, the appellate court became the voice of reason, ruling that “a pocketknife carried for protection is not necessarily a weapon”. See C.R. v. State, 73 So. 3d 825 (Fla. 4^th. DCA 2011). Florida law states that Messineo wasn’t carrying a weapon, so the issue should have died right then and there, but because she admitted to using it for self-defense, that got her in trouble. The logic here doesn’t make much sense. For example, when I was a kid, I watched my fair share of Bruce Lee movies. It was my understanding that Bruce Lee could have rolled up a piece of paper and killed me with nothing but a sheet of paper. Yes, Bruce Lee’s skills may have been both real and mythical, but for our purposes, any probationer admitting to such skills would be violated for carrying a weapon in the form of a piece of paper. Hum.

Ok, so the appeals court struck down probation’s violation for possessing a weapon. Two more violations to go. The final two violations involve the same issue. Ms. Messineo failed to complete 40 hours of community service, and failed to complete a psychological evaluation. But, she had over a year left on probation, so what’s the rush? Well, because probation told her to complete them, that’s the rush. Once again, this probation officer had no concept of how the law works on something as simple as the completion of court ordered tasks.

When a court orders the completion of community service (or, anything else for that matter), this condition must be completed by the end of the probationary term. Pretty simple, right? Now, if the judge wants it done sooner, then the judge can simply add “complete by such and such date”. That wasn’t the case for Ms. Messineo. She had all the time in the world to complete her conditions. The appellate court reversed her violations on these accusations as well, holding that “the trial court also erred in finding that Appellant violated conditions 23 and 24 of her probation because there were no schedules or deadlines set for compliance, other than the implicit requirement to complete them before the conclusion of her probation term. . . While Appellant had not begun her community service requirement during the first twelve months of her probationary term, she had eighteen months of probation remaining at the time the court violated her probation.” Id.

This situation is pretty common in Florida, unfortunately. A probation officer made three bogus violation accusations. A citizen sat in jail on no bond while the court sorted out these three violations. Every single accusation was struck down on appeal. And to be fair, the probation officer isn’t the only one to blame. There was a prosecutor involved who didn’t know the law regarding these three accusations. There was a VOP judge that didn’t know the law. Once again, your tax payer dollars hard at work.

[PIC: Biscayne Bay taken during the 2015 FACDL Annual Conference]