VOP for Being Kicked Out of Drug Treatment

Have you ever seen a fist fight live? I hate fist fights, and violence in general (not liking violence is a bold statement, I know, I’m really going out on a limb here). It is painful to watch such raw violence. And, do you know what happens to the guy who gets knocked down after taking one too many fists to the face? The fight is over, right? Wrong. The guy on the ground will now be the proud recipient of several kicks to the head and body. The cliche is true, you shouldn’t kick a man while he’s down.

Kicking someone while they’re down comes in many flavors, not all of them are physical. Today we’re going to review a beat down taken by a probationer at the hands of her probation officer, a prosecutor, and last but not least–an “honorable” judge gets a few licks in that would make a UFC fighter wince.

Our story begins at a motel, the kind that rents by the week. The folks who live in these places are just one dollar away from homelessness. Suffice to say, you have to be down on your luck to live in such conditions, and you should be well armed to visit (at least the ones in Central Florida). Ms. Charles was in just that sort of bind. She was on probation, and living in a motel with her two young children. Rent came due, and Ms. Charles didn’t have it, so she was evicted. At this point, she was homeless with two kids and no money. Many prison terms start in this fashion, and Ms. Charles was no exception to the rule. Charles v. State, 2016 Fla.App. LEXIS 16217 (Fla. 4th DCA 2016).

Probation required Ms. Charles to attend drug treatment, and to ask permission of her probation officer whenever she decided to change residence. Even though Ms. Charles became homeless, she somehow found her way to drug treatment. But, she had no one to watch her two kids. So, she showed up to treatment with her kids, and they refused her entry into the class. That episode counted as “one strike” against her. A second strike, and she’s out of treatment.

You already know that Ms. Charles couldn’t pay her motel rent. You already know she’s homeless, yet she somehow finds someone to babysit her kids while she attends drug treatment. Unfortunately, the babysitter made her 5 minutes late to treatment. As such, they denied her entry into the class for being late. This was her second strike, so she was terminated from the program.

Two kids. Homeless. No money. Still trying to comply with treatment. After all this, Ms. Charles shows up to her scheduled probation visit and updates the probation officer on her dire straights. Do you think probation might have a bit of sympathy here? Do you think I’d be writing this article if they did?

Bearing in mind that the general theme here involves ‘kicking people while they’re down’, you’ve probably figured out that this probation meeting didn’t go well. Ms. Charles was placed in handcuffs at her meeting and sent off to jail. All heart, right? To add insult to injury, the judge gave her 40.5 months in prison for this violation.

Now, there are several taxpayer supported government officials (redundant) who could have mitigated Ms. Charles’ bad situation. First, when Ms. Charles showed up to probation and explained her homelessness and termination from treatment–probation could have worked with her. Instead, probation put handcuffs on her. Morally shocking, but not surprising.

Well, probation officers aren’t known for their empathy, so wouldn’t there have been several other government officials who could have stopped the bleeding here? When Ms. Charles went to jail over this, the first appearance judge could have sniffed this one out, right? Once again, your taxpayer dollars, working hard to waste your money.

What about the prosecutor? Couldn’t the prosecutor have seen the injustice here, and sought some sort of resolution that didn’t involve two children being without their mommy for 40.5 months? We have a probation officer, a prosecutor, and a judge out there who may find the 22nd chapter of the Book of Matthew interesting. It’s the (inconvenient?) part of the Bible where Jesus says that loving your neighbor is the most important commandment. Loving is not a suggestion, not a recommendation, but a command. Jesus didn’t say its ok to be a jerk during work hours, so long as you love your family after work. I’m sure even ISIS does that much. Do you think any of these folks showed any love toward Ms. Charles?

If there’s no moral outrage here, let’s talk money. You folks would not believe the absolute, colossal waste of taxpayer dollars that flow from violations of probation. It’s not just the price tag here for 40.5 months in prison, it’s the two kids that will be without their mom for 40.5 months.

After quite a bit of time in prison, Ms. Charles’ defense attorney filed an appeal. Here’s the legal analysis. Violations of probation depend upon a deceptively simple concept: willfulness. If the violation isn’t willful, then there is no violation. So, what does it mean to say that some action must be “willful?” (No, we’re not going to address the freewill vs. determinism debate, as fun as that may be)

Was Ms. Charles’ termination from drug treatment willful? The law on VOP’s for failing to complete treatment are fairly simple. First, the termination “must be shown to be the probationer’s fault.” Id. citing Rainer v. State, 657 So. 2d 1230 (Fla. 4th DCA 1995). Second, “if a probationer makes a reasonable effort to comply, his failure will not be considered willful.” Id. citing Thomas v. State, 672 So. 2d 587, 589 (fla. 4th DCA 1996). The appellate court held that Ms. Charles “made reasonable efforts to attend her treatment sessions but was thwarted by her childcare issues. Defendant’s circumstances fall in line with cases wherein the courts have led that the probation did not willfully violate probation.” Id.

What about Ms. Charles’ failure to request permission to change address before becoming homeless? Once again, the probation officer, the prosecutor, and the VOP judge didn’t follow the law. The law is simply stated by the appellate court: “when a probationer becomes displaced from his/her residence with little notice and is made temporarily homeless, the probationer’s failure to procure permission to change residences cannot be considered a willful violation of probation.” Id. citing Williams v. State, 896 So. 2d 805, 806 (Fla. 4th DCA 2005).

And there you have it. The appellate court sprung Ms. Charles out of prison.

This case reminds reminds me of the question posed by the Black Eyed Peas a few years ago: Where is the love?