Last week a decision came out of Florida’s First District Court of Appeals that should provide some peace of mind to those unable to afford the cost of treatment and supervision.
The appellant was convicted of violating his probation for (1) failure to comply with his electronic monitoring, (2) failure to comply with sex offender treatment, and (3) failure to pay cost of supervision fees.
The appellant walked away from his ankle monitor base station for approximately five minutes while it was charging. The appellant could not cover the $90 cost for his sex offender treatment session and the therapist would not allow for partial payment. And the appellant could not afford the $4.50 daily cost of supervision because despite looking for employment, could not get a job.
The court found: Evidence that a probationer walked away from a monitoring device for a brief period of time is not competent, substantial evidence of a substantial and willful violation. In probation revocation proceedings for failure to pay a monetary obligation as a condition of probation, the trial court must find that the defendant’s failure to pay was willful—i.e., the defendant has, or has had, the ability to pay the obligation and purposefully did not do so.’ The failure to attend sex offender treatment is not willful if the probationer failed to attend due to a lack of ability to pay.
Why is it that no one discussing sex offender “treatment” ever seems to delve into the criminality inherent in that cottage industry. Rarely do the treatment providers boast a PhD in their resumes. They are “wannabe” psychologists and psychiatrists who are allowed to “practice” these supposed skills on a captive clientele – all of whom of course must pay cash for these dubious benefits, most often meted out in a group environment. Most of the time the treatment involves a “naming and shaming” philosophy rife with confrontation within the group and/or based on inquisitional techniques of interrogation as to what or how they are currently living their lives.
Eric Hoffer, the famous longshoreman philosopher, said it best and I paraphrase it here: all great causes – or supposed ones – begin as a movement, rapidly become a business, and then devolve into a racket. Such is the state of sex offender “treatment” today. Think about all that cash money these poor unfortunates are forced to lay out to listen for an hour and 1/2 or more while the treatment provider tries to intimidate and insult them, counting on the fact that these unfortunates condemned to this sort of “treatment” whether they want it or not, or need it or not are aware that a word from these people to their individual parole officers or supervisors in these poor unfortunates can be on a prison bus back to incarceration if they do not genuflect enough or “kow – tow” to these forensic overlords who are most of the time on some sort of power trip. Then of course there are the endless polygraph tests, which even if one does pass, must be repeated fairly often as “maintenance”. These of course are also couched in cash payments. In Illinois it amounts to $360 a pop for testing. God forbid you should get a desultory or unclear response to any individual question the polygrapher may ask to have it accounted as a negative or a deliberate lie on the part of the person taking the test.
Now imagine having to drive 70 or more miles in a round trip to attend these farcical proceedings – and on a weekly basis to boot. I am of course describing all of this from personal experience in Illinois – at least until I decided to call a spade a spade and got myself kicked out of the class on purpose because I could no longer stand the nonsense of being made to pay for the nails and cross of my own crucifixion.
Thank you FAC for reminding people to be cautious…. While the First District ruled in the appellant’s favor that doesn’t mean the someone in another district can rely on it. The issue that we (SO’s on probation) all need to remember is that our danger starts with the individual probation officers. If you asked 10 different officers you’d probably get 7-8 different interpretations. You absolutely might prevail at trial or on appeal but that’s a long difficult road to travel.
Roger, we’re on the same page with your response. I was amazed when I was on probation at how many different answers the same question got. I don’t really blame the probation people for the confusion. It’s the way the laws are thrown together, driven by paranoia and emotion…with no common sense or logical application.
@Roger re: …asking 10 different probation officers.
When I needed a travel permit my officer was out of the office. She normally faxes them to me.
The officer who was kindly doing my permit in her place told me I needed to come by and get it as she doesn’t fax travel permits. This is 2 officers in the same building doing things differently. She told me she could email my permit to me to a closer location to me (I was at work). I asked if she could simply email it directly to me, she laughed and said “No, we don’t email travel permits” I told her my friend (s.o. in another Florida county) gets his emailed directly to him. She responded “Well, that is that county, we don’t do that in this county” (paraphrasing).
Is this the FLORIDA DEPARTMENT OF CORRECTIONS? Or is it the (insert county here) department of corrections? Hello? I thought this was a STATE agency using STATE guidelines?
Maybe there is a glimmer of hope for Florida. Many of the probation officers in Florida must have missed the class on common sense.
This is a BIG relief! Last week my husband was in Cardiac Care Unit with a blood infection and sepsis. Eight days in he was taken out of his room, bed and all beeping machinery to a CAT scan. The hospital personnel would not take the XT with as they did not want it near the machine. So, an almost an hour ‘alarm’. P/O says they have to report it and that protocol was not followed.
So if a VOP results, haha,hah,hah.
Documentation and proof in hand.
Also, as he was admitted thru Emergency via ambulance and could not notify ‘in person’ sheriff nor DMV of ‘temporary address’.
I am more than ecstatic , but will this be retroactive and if so to what time period?
In an abundance of caution, remember that PROBATION VIOLATIONS must be willful. REGISTRATION VIOLATIONS are strict liability and do not have to be willful.
We wrote about this in a weekly update earlier this year: https://floridaactioncommittee.org/weekly-update-2019-01-31/
This has been settled law in Florida since time immemorial. Whenever a circuit court revokes probation solely due to failure to pay costs or attend a therapy session which requires payment and it is clear that the probationer is indigent, the court is willfully disobeying settled law and established precedent. There have been hundreds of Florida DCA opinions with the identical holding. I read the Court’s decision, and it appears that both the probation officer and the presiding judge were the ones who willfully and substantially violated the law.
Sounds like a classic Bearden v. Georgia case that has been precedent since 1983 but all-too-often overlooked by most superior/criminal courts.
My probation was revoked last year for this very same circumstance (less the ankle monitor), despite a clear showing that my rent and child support ($270 per week between them, out of a $300 per week salary) made it mathematically impossible to pay for a polygraph. The judge revoked not because of being kicked out of the “treatment” program, but because of my original charges and perceived lenient sentence I got.
I wonder how often this scenario has been repeated throughout the current era of “sex offender management.”
Had to look twice at the result because i was saying to myself this cannot be Florida. Finally a little common sense entered the courtroom the only problem with the decision is the defendant or RSO probably had to sit in jail for 6 or so months before his case was heard
You are correct, no hope. His trial court found him guilty – so for at least as long as it took him to appeal he sat with that sanction. Think of how many can’t afford to appeal!
FAC,
Think also of those who can’t afford attorneys and try to proceed pro se and being roadblocked by procedural rules. Most courts will tell such persons to go to the public defender, who always advise not to bother. Asking a PD to do anything in their defense is all too often like asking a fish to fly.
I personally think it’s sad that most courts subordinate the law to court rules, many of which are specifically written to preclude pro se litigation.