Missing a Probation Visit Not Enough to Support a VOP

It’s “Violation of Probation Month” here at the law office, and unfortunately, VOP’s are in the air, or so it seems. Of course, being on probation isn’t fun, as many of Orlando’s probationers will testify. And just in case life isn’t busy enough these days, probation adds significant extra appointments, rules, and regulations to the everyday life of a probationer. Sometimes, a probationer forgets one of these appointments and ends up in jail on a violation of probation accusation. What now?

One of the most basic rules of VOP defense involves the following question: did the probationer “willfully and substantially” violate his probation? Let’s take a look at an all too common scenario as found in the real life example of Perez v. State, 884 So.2d 306 (Fla. 2nd DCA 2004). Perez was found guilty of violating his probation, at which time the judge extended his probation one year. Perez then violated this extra one year of probation and received a seven year prison sentence. The line of attack here was simple: the appellate attorney challenged the validity of the one year extension of probation. Here’s a breakdown of the battle.

The initial violation was based upon the fact that Perez failed to present himself for random drug testing at the times his probation officer requested, between the hours of 4pm and 5pm. Perez showed up at 5:20pm, and probation told him to come back the next day. Perez was able to come into the office to be tested the next day, and did so (after 19 years of criminal defense work, I find this to be a fairly common basis for a VOP. An officer tells a probationer to jump–they better jump, or else. But, that’s not really the law). The trial court found this failure to appear to be enough to violate Perez, and as punishment extended his probation one year.

The legal attack goes back to our basic rules for defending VOP’s: was the violation “willful and substantial”? The appeals court said no, so they overturned the seven year prison term, holding that “Perez’s failure to report to the probation office between 4 p.m. and 5 p.m. cannot be viewed as a substantial violation in light of the fact that he did report only twenty minutes late….Therefore, we conclude that the State failed to prove that Perez willfully and substantially violated his probation”. Id at 308.

There’s some practical advice buried deep within the Perez case. Don’t be intimidated by probation. Don’t be intimidated by a probation officer’s threat to violate. Too often, in a situation like Perez’s, the probationer who is late will simply not show up for fear of already being violated. So, make every effort you can to comply–even if you’re late. Call a local criminal defense attorney, get some help, and make every effort to comply. You may not beat the initial VOP arrest (Perez didn’t), but hopefully your actions will help you win later at the violation hearing.