Palm Beach, FL, 10/22/2015 /SubmitPressRelease123/
Recently, the 4th District Court of Appeals rendered an opinion that has profound and long lasting effects on how Violations of Probations ought to be dealt with, by criminal defense attorneys who handle Violations of Probation. Many times, probationers find themselves in violation of felony probation including terms of community control or house arrest for not completing a probationary requirement or for violating probation by committing a new crime. When probationers violate their probation, they are at the mercy of the “sentencing guidelines” as to what their possible sentence may be. But that is only if they plead guilty to violating the terms of their probation or are found after a final violation of probation hearing to have willfully, substantially and materially violated their probation.
So, how can a probationer avoid a prison sentence, assuming under the sentencing guidelines he or she scores out to Florida State Prison time, after pleading guilty or be found guilty of violating their probation? The answer is in State of Florida v. Walford Folkes, (4th DCA Sept. 16 2015) Nos. 4D13-2027, 4D13-2076 & 4D13-2216.
In Folkes, the probationer admitted violating conditions of his community control in three separate felony cases. The sentencing judge, rather than revoke community control and sentence the defendant to a mandatory State Prison Sentence, under the Florida Sentencing Guidelines, elected to continue community control but modify the conditions. The State being furious that the Mr. Folkes was not sent to prison after violating three felony cases of probation, appealed the disposition, insisting the statutes governing a “violent felony offender of special concern” do not allow continuation of defendant’s community control absent certain factual findings which were not made here.
The 4th District Court of Appeals, however disagreed and held that the State’s right to appeal in a criminal case must be expressly conferred by statute. State v. Maddex, 159 So. 3d 267, 269 (Fla. 4th DCA 2015) (quoting Exposito v. State, 891 So. 2d 525, 527 (Fla. 2004).
Under Sec. 924.07, Florida Statutes permits the State to appeal an illegal sentence and a sentence that is below the lowest permissible sentence as established by the Criminal Punishment Code. See § 924.07(1) (e), (i), Fla. Stat. (2014). However, and most important for criminal defense lawyers practicing in the area of violations of probation, in Palm Beach County, is to remember that a sentencing Judge’s order reinstating, continuing, or modifying a probationer’s probation, community control, or any other form of his or her terms of probation following a violation of probation is not, however, a “sentence” within the meaning of the statute. See State v. Bell, 854 So. 2d 686, 689–90 (Fla. 5th DCA 2003); which cites Sec. 948.06(1), Florida Statutes, which speaks in terms of a trial court imposing a sentence only if it revoked probation or community control, and holding that “if the court chooses to modify or continue the original probation or community control, it may do so and the state cannot appeal such action.”)
The lessons learned from the Folke ruling is to not enter an acceptance or guilty plea on a violation of probation, before first attempting to get the trial judge to modify or continue the original terms of probation, as such action by the judge is not an issue for the State to appeal. As under Florida law, it is well settled that the prosecutor may not appeal an order modifying community control, because a modification of community control does not constitute a sentence. State v. Gray, 721 So. 2d 370, 370–71 (Fla. 4th DCA 1998). Therefore, if it is not a “sentence” and only a modification of the original sentence, then the sitting judge’s modification of the probationer’s existing sentence after a violation of probation has been found, cannot be appealed by the state for not following the “guidelines or sentencing scoresheet” that calls for a state prison sentence.
So, the goal is to take the possibility of prison time out of the judge’s hand, in all violations of probation and to prevent the state from appealing such order that modifies or continues the terms of probation, as opposed to a term of incarceration, regardless of what the sentencing guidelines suggest. Hiring an experienced violation of probation lawyer to help you fight your violation of probation in Palm Beach County, FL is as easy as calling 561 880 4300. Telephone Palm Beach Criminal Defense Lawyer Andrew D. Stine at 561 880 4300 and he will help defend you and your freedom in all probation problems throughout Palm Beach County, FL. Hire Stine or Do the Time.
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