How hard is it to prove a negative? Urban myth claims that “you can’t prove a negative”. Take the rather cliched statement notion that we can never prove that “God does not exist”–because we can’t prove a negative. This is intellectually lazy nonsense, as there are good arguments both for, and against, a Creator. That being said, the word “God” creates friction between myself and my web optimizer people, as they deem such discussions “difficult to optimize for search engines.” Hum, what do these SEO people do, anyway? Ok, I’ll stop.
Still, it’s easy to prove a negative. Take the following statement: No Ferrari’s exist in John’s garage. Can we prove this negative? Sure. Open my garage door, and bam, there’s no Ferrari (most statements can be transformed into a negative). Speaking of cars, I would like an Italian sports car–of any ilk–even an Alfa Romeo (basically, some of the least expensive Italian cars out there). [So, if you’re really interested as to why you can prove negatives, and I bet none of you are, but just in case, check out Steven D. Hales article “Thinking Tools: You Can Prove a Negative”].
Many violations of probation involve proving a negative. Let’s delve into why probation fails on such issues.
A common probation violation involves changing residence without the permission of probation. Typically, this violation occurs when probation decides to make that dreaded “home visit”. And, that’s just what happened in our case of the day, Allen v. State, 211 So. 3d 55 (Fla. 4th DCA 2017). Allen was found guilty of violating 5 years of probation, and received a 25 year prison sentence upon violating that probation. He violated with a few new charges, and by changing his residence without informing his probation officer. We’re only going to address the change of residence.
As we said, Allen’s probation officer decides to visit his home. Surprise surprise, he’s not there. Yes, you could visit me at home right now, and I’m not there either, I’m at the office slaving over this article. Now, if your probation officer (PO) has an itchy trigger finger, one such visit may be all it takes to end up with a violation, but Allen’s PO decided to visit a second time. “The second time she visited, she was stopped by a locked gate and could see a realtor’s lock on the door.” id. at 7. Hum. Allen was not present for two visits. Probation’s response “he must have moved! I’m violating his ass.” (I made up probation’s response, but I’m sure its fairly accurate)
After the second visit, do we now have a legit violation for changing residence without permission? No. The court held that “the fact that Allen was not present the two times the probation officer visited would not establish that he had moved.” id. Strike One.
What about the realtor’s lock box, does that fact push this into violation territory? Nope. The court noted that a “lock box does not necessarily mean that the renter no longer lives there. It may only have meant that a realtor was showing the house.” id. Strike Two.
So, how do you prove a negative, and show the court that “Allen no longer lives here”? The court hinted that evidence from the owner of the home would be helpful, but I would argue even that that isn’t enough. For example, I had client arrested for failure to register as a sex offender, after the sex offender task force found his registered home to be vacant. We didn’t challenge that the home was vacant, and even the owner (out of state investor) testified that my client was no longer living in the home. Still, the case was dismissed. Why? The State couldn’t refute my client’s testimony that he continued to live in a back shed of the house. As such, his address was still valid. An empty home and home owner testimony couldn’t establish that my client had moved. Case dismissed.
Even though the appellate court overturned Allen’s conviction for changing residence without permission, the court upheld other aspects of his violation, so he’s stuck with 25 years in prison.
Sometimes, people don’t realize how serious violations of probation are. On five years of probation, how bad could a VOP sentence really be? In Allen’s case, the answer was two and a half decades behind bars. Yikes.