VOP hearing in Florida

2024In Douglas v. State, 43 So. 3d 196 , 198–99 (Fla. 4th DCA 2010), the Fourth District discussed several cases in which the defendant was found entitled to a new VOP hearing or an evidentiary hearing on a 3.850 motion, based on evidence developed after the VOP proceedings had concluded.

2024In Douglas v. State, 43 So. 3d 196 , 198–99 (Fla. 4th DCA 2010), the Fourth District discussed several cases in which the defendant was found entitled to a new VOP hearing or an evidentiary hearing on a 3.850 motion, based on evidence developed after the VOP proceedings had concluded.

2015Id. at 679 (explaining that “a nunc pro tunc competency evaluation could be done where ‘there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing’”) (quoting Mason v. State, 489 So.2d 734, 737 (Fla.1986)); see also Merriell v. State, 169 So.3d 1287 (Fla. 1st DCA 2015); Hunter v. State, 174 So.3d 1011 (Fla. 1st DCA 2015); Ross v. State, 155 So.3d 1259 (Fla. 1st DCA 2015).

2015Id. at 679 (explaining that “a nunc pro tunc competency evaluation could be done where ‘there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing’”) (quoting Mason v. State, 489 So.2d 734, 737 (Fla.1986)); see also Merriell v. State, 169 So.3d 1287 (Fla. 1st DCA 2015); Hunter v. State, 174 So.3d 1011 (Fla. 1st DCA 2015); Ross v. State, 155 So.3d 1259 (Fla. 1st DCA 2015).

2015With post-conviction claims of newly discovered evidence, defendants may receive a new VOP hearing on the basis of newly discovered evidence by demonstrating, first, the existence of “new” evidence unknown and unknowable at the time of the first hearing; and, second, that the evidence would “probably produce a different result.” Stallworth v. State, 21 So.3d 84, 86 (Fla. 1st DCA 2009); Douglas v. State, 43 So.3d 196, 198-99 (Fla. 4th DCA 2010).

2015With post-conviction claims of newly discovered evidence, defendants may receive a new VOP hearing on the basis of newly discovered evidence by demonstrating, first, the existence of “new” evidence unknown and unknowable at the time of the first hearing; and, second, that the evidence would “probably produce a different result.” Stallworth v. State, 21 So.3d 84, 86 (Fla. 1st DCA 2009); Douglas v. State, 43 So.3d 196, 198-99 (Fla. 4th DCA 2010).

2024See Arteaga v. State, 246 So. 3d 533, 536 (Fla. 2d DCA 2018).

2024See Arteaga v. State, 246 So. 3d 533, 536 (Fla. 2d DCA 2018).

2023In terms of entitlement to a new VOP hearing, fundamental error is one that “reach[es] down into the validity of the trial itself to the extent that a [finding of guilt] could not have been obtained without the assistance of the alleged error.” Milanes v. State, 296 So. 3d 933 , 937 (Fla. 4th DCA 2020) (quoting Harrell v. State, 894 So. 2d 935, 941 (Fla. 2005)).

2023In terms of entitlement to a new VOP hearing, fundamental error is one that “reach[es] down into the validity of the trial itself to the extent that a [finding of guilt] could not have been obtained without the assistance of the alleged error.” Milanes v. State, 296 So. 3d 933 , 937 (Fla. 4th DCA 2020) (quoting Harrell v. State, 894 So. 2d 935, 941 (Fla. 2005)).

2023P. 3.111(d)(5) (“If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”) (emphasis added); Birlkey v. State, 220 So. 3d 431, 435 (Fla. 4th DCA 2017) (“[T]he trial court erred in failing to renew an offer of counsel before the sentencing hearing on [the defendant’s] probation violation even though the hearing occurred immediately following the conclusion of the VOP hearing.”).

2023P. 3.111(d)(5) (“If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”) (emphasis added); Birlkey v. State, 220 So. 3d 431, 435 (Fla. 4th DCA 2017) (“[T]he trial court erred in failing to renew an offer of counsel before the sentencing hearing on [the defendant’s] probation violation even though the hearing occurred immediately following the conclusion of the VOP hearing.”).

2020See Silver, 193 So. 3d at 993 ; Bruni v. State, 293 So. 3d 1054 , 1055 (Fla. 4th DCA 2020) (confirming that there were reasonable grounds to question the defendant’s competence at a VOP hearing).

2020See Silver, 193 So. 3d at 993 ; Bruni v. State, 293 So. 3d 1054 , 1055 (Fla. 4th DCA 2020) (confirming that there were reasonable grounds to question the defendant’s competence at a VOP hearing).

2019See, e.g., Smith v. State, No. 1D17-2771, 2019 WL 942980 , at *1-2 (Fla. 1st DCA Feb. 27, 2019) (holding that an error in an affidavit of violation which alleged that the defendant violated the terms of his probation by committing "sexual assault"—which, technically speaking, is not an offense under Florida law—was harmless because the defendant was "clearly on notice of the crimes for which he was arrested and charged"); Langbaum v. State, 799 So. 2d 391, 392-93 (Fla. 4th DCA 2001) (en banc) (holding that an error in an affidavit of violation which alleged without elaboration that the defenda

2019See, e.g., Smith v. State, No. 1D17-2771, 2019 WL 942980 , at *1-2 (Fla. 1st DCA Feb. 27, 2019) (holding that an error in an affidavit of violation which alleged that the defendant violated the terms of his probation by committing "sexual assault"—which, technically speaking, is not an offense under Florida law—was harmless because the defendant was "clearly on notice of the crimes for which he was arrested and charged"); Langbaum v. State, 799 So. 2d 391, 392-93 (Fla. 4th DCA 2001) (en banc) (holding that an error in an affidavit of violation which alleged without elaboration that the defenda

2019See, e.g., Smith v. State, No. 1D17-2771, 2019 WL 942980 , at *1-2 (Fla. 1st DCA Feb. 27, 2019) (holding that an error in an affidavit of violation which alleged that the defendant violated the terms of his probation by committing "sexual assault"—which, technically speaking, is not an offense under Florida law—was harmless because the defendant was "clearly on notice of the crimes for which he was arrested and charged"); Langbaum v. State, 799 So. 2d 391, 392-93 (Fla. 4th DCA 2001) (en banc) (holding that an error in an affidavit of violation which alleged without elaboration that the defenda

2019See, e.g., Smith v. State, No. 1D17-2771, 2019 WL 942980 , at *1-2 (Fla. 1st DCA Feb. 27, 2019) (holding that an error in an affidavit of violation which alleged that the defendant violated the terms of his probation by committing "sexual assault"—which, technically speaking, is not an offense under Florida law—was harmless because the defendant was "clearly on notice of the crimes for which he was arrested and charged"); Langbaum v. State, 799 So. 2d 391, 392-93 (Fla. 4th DCA 2001) (en banc) (holding that an error in an affidavit of violation which alleged without elaboration that the defenda

2019This error likely went unnoticed at the VOP hearing due to the fact that the parties and the court vaguely referred to all violations, except the new law violations, as "technical violations" without ever specifying the nature of the "technical violations." "[P]robation cannot be revoked for violating a special condition that was not imposed by the court." Schlup v. State, 772 So. 2d 628, 629 (Fla. 1st DCA 2000).

2019This error likely went unnoticed at the VOP hearing due to the fact that the parties and the court vaguely referred to all violations, except the new law violations, as "technical violations" without ever specifying the nature of the "technical violations." "[P]robation cannot be revoked for violating a special condition that was not imposed by the court." Schlup v. State, 772 So. 2d 628, 629 (Fla. 1st DCA 2000).

2019See, e.g., Smith v. State, No. 1D17-2771, 2019 WL 942980 , at *1-2 (Fla. 1st DCA Feb. 27, 2019) (holding that an error in an affidavit of violation which alleged that the defendant violated the terms of his probation by committing "sexual assault"—which, technically speaking, is not an offense under Florida law—was harmless because the defendant was "clearly on notice of the crimes for which he was arrested and charged"); Langbaum v. State, 799 So. 2d 391, 392-93 (Fla. 4th DCA 2001) (en banc) (holding that an error in an affidavit of violation which alleged without elaboration that the defenda

2019See, e.g., Smith v. State, No. 1D17-2771, 2019 WL 942980 , at *1-2 (Fla. 1st DCA Feb. 27, 2019) (holding that an error in an affidavit of violation which alleged that the defendant violated the terms of his probation by committing "sexual assault"—which, technically speaking, is not an offense under Florida law—was harmless because the defendant was "clearly on notice of the crimes for which he was arrested and charged"); Langbaum v. State, 799 So. 2d 391, 392-93 (Fla. 4th DCA 2001) (en banc) (holding that an error in an affidavit of violation which alleged without elaboration that the defenda

2018See State v. Akins, 69 So. 3d 261 (Fla. 2011) (holding that HFO designation must be restated at each resentencing to be applied); Wighard v. State, 71 So. 3d 170 (Fla. 5th DCA 2011) (applying Akins and holding that HFO designation was lost when it was not restated at VOP hearing).

2018See Larrieux, 138 So. 3d at 1221-22 ; Dean, 60 So. 3d at 533 ; Witt, 983 So. 2d at 708 .

2018See Larrieux, 138 So. 3d at 1221-22 ; Dean, 60 So. 3d at 533 ; Witt, 983 So. 2d at 708 .

2017Sears v. State, 889 So.2d 956, 959 (Fla. 5th DCA 2004).

2017Sears v. State, 889 So.2d 956, 959 (Fla. 5th DCA 2004).

2017See Segal, 920 So.2d at 1280 (“[A] VOP hearing is a crucial stage requiring the renewal of the offer of assistance of counsel.”).

2017See Segal, 920 So.2d at 1280 (“[A] VOP hearing is a crucial stage requiring the renewal of the offer of assistance of counsel.”).

2017See Bona v. State, 75 So.3d 1286, 1286 (Fla. 4th DCA 2011) (“[W]e reverse the sentence.

2017See Bona v. State, 75 So.3d 1286, 1286 (Fla. 4th DCA 2011) (“[W]e reverse the sentence.

2017Cf. id.; State v. Massingill, 77 So.3d 677, 680 (Fla. 3d DCA 2011).

2017Cf. id.; State v. Massingill, 77 So.3d 677, 680 (Fla. 3d DCA 2011).

2016See, e.g., Ware v. State, 159 So.3d 192, 195 (Fla. 1st DCA 2015) (recognizing that evidence which develops after a VOP hearing can support a post-conviction claim of newly discovered evidence, and a defendant can be entitled to new VOP hearing when the new evidence would probably produce a different result); Humbert v. State, 933 So.2d 726 (Fla. 2d DCA 2006) (remanding for new VOP hearing where conviction which formed the sole basis for revocation was reversed on appeal); see also Douglas v. State, 43 So.3d 196 (Fla. 4th DCA 2010).

2016See, e.g., Ware v. State, 159 So.3d 192, 195 (Fla. 1st DCA 2015) (recognizing that evidence which develops after a VOP hearing can support a post-conviction claim of newly discovered evidence, and a defendant can be entitled to new VOP hearing when the new evidence would probably produce a different result); Humbert v. State, 933 So.2d 726 (Fla. 2d DCA 2006) (remanding for new VOP hearing where conviction which formed the sole basis for revocation was reversed on appeal); see also Douglas v. State, 43 So.3d 196 (Fla. 4th DCA 2010).

2015See Ware, 111 So.3d at 260 n. 3 (“The fact that the prosecutor may have made the decision to pursue the perjury charge after the VOP hearing does not preclude it from being newly discovered evidence that may be considered at the postconviction proceeding.”).

2015See Ware, 111 So.3d at 260 n. 3 (“The fact that the prosecutor may have made the decision to pursue the perjury charge after the VOP hearing does not preclude it from being newly discovered evidence that may be considered at the postconviction proceeding.”).

2015In making this determination, the post-conviction court “must consider the effect of the newly discovered evidence, in addition to all of the admissible evidence that could be introduced at a new [proceeding],” Hildwin v. State, 141 So.3d 1178, 1184 (Fla.2014) (citing Swafford v. State, 125 So.3d 760, 775-76 (Fla.2013)), and consider that “the State need merely prove the violation by a greater weight of the evidence.” See Douglas, 43 So.3d at 198-99 .

2015In making this determination, the post-conviction court “must consider the effect of the newly discovered evidence, in addition to all of the admissible evidence that could be introduced at a new [proceeding],” Hildwin v. State, 141 So.3d 1178, 1184 (Fla.2014) (citing Swafford v. State, 125 So.3d 760, 775-76 (Fla.2013)), and consider that “the State need merely prove the violation by a greater weight of the evidence.” See Douglas, 43 So.3d at 198-99 .

2015Id. at 679 (explaining that “a nunc pro tunc competency evaluation could be done where ‘there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing’”) (quoting Mason v. State, 489 So.2d 734, 737 (Fla.1986)); see also Merriell v. State, 169 So.3d 1287 (Fla. 1st DCA 2015); Hunter v. State, 174 So.3d 1011 (Fla. 1st DCA 2015); Ross v. State, 155 So.3d 1259 (Fla. 1st DCA 2015).

2015Id. at 679 (explaining that “a nunc pro tunc competency evaluation could be done where ‘there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing’”) (quoting Mason v. State, 489 So.2d 734, 737 (Fla.1986)); see also Merriell v. State, 169 So.3d 1287 (Fla. 1st DCA 2015); Hunter v. State, 174 So.3d 1011 (Fla. 1st DCA 2015); Ross v. State, 155 So.3d 1259 (Fla. 1st DCA 2015).