Gainesville Personal Injury, Divorce and Alimony Attorney

Probation Violation Must Be Willful and Substantial To Revoke Probation

Probation can be revoked upon a finding that a violation is willful and substantial. The State has burden to prove by the greater weight of the evidence that the probation violation is willful and substantial. This standard or burden of proof is also called preponderance or “more likely than not”. 

In a recent case from the Second District, a probationer who at his original sentencing was found to have several mental and emotional deficits, including mental retardation, a limited formal education, and found to be illiterate was accused of violating probation. The probationer was found to have violated his sex offender probation by leaving the county without permission and entering a park where children tend to gather and sentenced to fifty years incarceration in state prison.

At the hearing on the violation of probation, the probationer did not argue the facts of either allegation. Rather, he contended that his violations were not willful. He was cared for by his sister, who took him with her on an errand to visit a sick friend. She did not inform him where they were going, and he never left her sight.

The probationer testified that signs indicating that they were entering a State Park did not alert him that he was in violation of his probation because he cannot read. Although the GPS monitor reports demonstrated that he was in the wrong County for forty minutes, the probationer did not intentionally either leave the County or enter the State Park. The State presented no evidence contest the testimony that his violations were not willful. The Court found that the evidence supported the probationer’s contention that he was not aware that he had left the County and that the State did not meet its burden. Probation was reinstated.

It amazes me that a person who is found to be illiterate and retarded can somehow still be sent to prison for ten years, then expected to follow the written terms of probation. Fortunately, the half century sentence was cut short by the appellate court. This case highlights the importance of presenting evidence and a defense at a violation of probation hearing. It also shows that notwithstanding the fact that a case should be won at trial, anything can and does happen once you litigate your case.

If you or a loved one is accused of violating probation, do not go it alone; click or call to hire a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Constructive Possession of a Controlled Substance

Constructive possession of a controlled substance is when the substance is not on the person or within a person’s exclusive control; whereas actual possession is when the substance is found on the person such as having cocaine or marijuana in a pants pocket. Many times a constructive possession case includes more than one defendant, for example if drugs are found at a traffic stop, and several passengers are inside the vehicle. Usually the officers will try to have someone make an admission that the narcotics or contraband belongs to them. If all parties remain silent, then sometimes all people are charged. 

In a constructive possession case the government has to prove not only that the person knew of the drugs, weapon, firearm or other contraband, but that the person can and dominion and control over it. In a recent case, law enforcement stopped a vehicle for an expired tag. The driver appeared nervous and began fumbling behind the visor that was located above his seat. The officer removed the driver and the passenger from the vehicle and placed the driver under arrest for driving with a suspended license.

The officer then conducted a search of the truck, which was littered with trash, and found contraband in three locations. The officer found an eyeglass case containing syringes and a residue-covered spoon behind the driver’s visor. The officer found a round blue pill on the driver’s side floorboard between the seat and the gas pedal, and a second round blue pill on the floorboard of the center console. The pills were tested and identified as oxycodone, a controlled substance.

The Court found that the knowledge and control over the passenger cabin cannot be inferred but must be proven by independent proof. As to the paraphernalia behind the visor, the Court found that the driver’s repeated fumbling with the items behind the visor and his nervous appearance provided independent proof of knowledge and control over the paraphernalia that was found behind the visor.

However, the control requirement requires more than the mere ability to reach out and touch the item of contraband, such as pills on the floorboard. Furthermore, mere proximity or being close to the pills on the floor is insufficient in itself to meet this burden. The court found that the same nervousness that formed the basis of proof for the paraphernalia behind the visor, could not be used as proof of control over the oxycodone pills because it could be attributed to the fact that the driver had been stopped or that he was in possession of the paraphernalia.

Just because pills, pot, paraphernalia or other contraband are found in the same car as a defendant does not necessarily mean that the State can prove a constructive possession case. If you or a relative are accused of any offense including an actual or constructive possession case the click or call today.

Gainesville (352) 371-9141

Ocala (352) 694-4529