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25 Sep 2012

Probation Officer’s Curfew “Instruction” Stricken Because Not Orally Announced At The Time Of Sentencing

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Port St. Lucie resident DX retained Jeffrey H. Garland, because his probation officer threatened to violate his probation if he failed to observe a curfew, and if he went to any public park, including the beach. DX was afraid not to comply with the instructions, but questioned whether the probation officer could lawfully impose such restrictions.

DX consulted with Jeffrey H. Garland who concluded that reasonable grounds existed to challenge the probation officer’s actions. In this case, DX was convicted of committing certain sex offenses before October 1, 1996. At that time, it was not mandatory for the sentencing court to impose a curfew. The sentencing judge did not orally pronounce a curfew, nor did he “check off” a curfew on the probation order.

Even though there was no indication that the sentencing judge intended for there to be a curfew, DX’s St. lucie County probation officer insisted that a curfew was mandatory, and that DX would be required to observe it, even though it was not indicated in the probation order.

Attorney Garland filed a motion for clarification of probation terms. The motion argued that a probation officer does not have authority to enhance a sentence by “instructing” a defendant to observe restrictions not imposed by the sentencing court. In short, the motion argued that condition 8, which requires a probationer to “comply with all instructions your probation officer may give you”, cannot be used to circumvent the failure of the court to announce a curfew at sentencing or to check off the curfew box on the probation order. The motion argued that the penalties in effect at the time of the offense governed the case, and that a mandatory curfew for this alleged crime did not go into effect until October 1, 1997. See 97-308, Laws of Florida.

The motion also argued that the probation officer misconstrued condition 17. DX’s probation officer instructed him not to go to or be at certain places described in condition 17 of the probation order, i.e. parks, play grounds, movie theaters, etc. In fact, condition 17 only prohibited DX from working for pay, or volunteering, at the certain places described in condition 17. The motion argued that the probation officer could not effectively enhance DX’s sentence by “instructing” him to observe restrictions not imposed by the sentencing court.

Circuit Judge Larry Schack considered this motion at a hearing on July 31, 2008. He offered the State an opportunity to express disagreement with the legal position put forth in the motion. The State expressed no such disagreement. Thereupon, Judge Schack granted the motion, finding that DX should not be subject to a curfew and should not be prohibited from going to or being at the places listed in condition 17; and he prohibited the probation officer from imposing restrictions which were not set forth at the time of the original sentencing. Judge Schack cautioned DX, however, that the ruling should not be construed by him to permit activities which would place him in direct contact with minors.

State v. DX, St. Lucie County Case No. 97-CF-xxxx

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