No Violation Of Probation For Contact With Law Enforcement

The defendant was placed on probation.  The State filed an affidavit charging the defendant with a violation of probation for “failing to live and remain at liberty without violating the law”.  At the violation of probation hearing, the defendant testified that he had had contact with law enforcement and that he faxed a copy of the citation he received for driving with a suspended license to his probation officer.  At the time of the violation of probation hearing the driving with a suspended license charge was still pending.  A copy of the citation was submitted into evidence.  When ask if he was driving on the date of the citation the defendant asserted his Fifth Amendment right to remain silent and did not answer.  The defendant’s probation officer testified that the defendant had notified him of the contact with law enforcement, and that he had requested to see the citation to see if it was a criminal or civil citation.   Upon consideration of this evidence the trial court ruled that the defendant was in violation of his probation.  The defendant filed an appeal.

The appeals court ruled the State did not show that the defendant committed any new crime, but instead, simply submitted evidence that the defendant had contact with a law enforcement officer.  It is improper to revoke probation based solely upon proof that the probationer had been arrested.  The State did not show that the elements of the crime of driving while license suspended, revoked, canceled, or disqualified were met.  See section 322.24(2), Florida Statutes (2010). License suspension, knowledge of the license suspension, and actual driving are the requisite elements of the crime of driving while license suspended.  The State did not prove that the defendant’s license was suspended, that the defendant had knowledge of the suspension, or even that the defendant had been driving on the date of the alleged infraction.  The defendant’s admission to having contact with law enforcement and receipt of a traffic infraction were not sufficient to show that the defendant violated any law. Consequently, since the evidence was insufficient to prove that a crime was committed, it was an error for the trial court to find the defendant to have violated probation.

See Prater v. State, 161 So.3d 489 (Fla. 5th DCA 2014)

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