Defendant benefits from not-yet-enacted new law

Lazaro Aleman
ECB Publishing, Inc.

A 66-year-old Monticello man in court last week for violation of probation and facing a possible four years in prison was the beneficiary of a state law yet to go into effect.
Ronald E. Blue was arrested on April 7 for violating two conditions of his probation, which was imposed on him as a result of a charge of aggravated assault with a deadly weapon in September 2017.
Blue, according to his probation officer, Robin Frutig, who testified at the court hearing on Monday, June 10, violated conditions 7 and 9 of his probation. Namely, the probation officer testified, Blue had on two occasions tested positive for cocaine use and compounded his culpability by denying the illegal
use when presented with the presumptive test results, which results lab tests later confirmed.
Condition 7 requires that probationers abstain from excessive use of intoxicants and not take any drugs or narcotics unless prescribed by a physician. Condition 9 requires that probationers respond promptly and truthfully to questions posed by an authority figure.
Under questioning by Assistant State Attorney Andrew Deneen, Frutig offered that Blue was in denial of his substance
abuse problem, that he had been under community supervision five times previously, and that she couldn't disagree with a period of incarceration for Blue, to be followed by treatment.
“Mr. Blue comes across as a caring person, but when I look at his history it's quite violent,” Frutig said.
Deneen argued to the court that based on Blue's prior criminal history, the defendant scored a minimum sentence of of 52.6 months in prison, according to the sentencing guidelines. He cited Blue's long criminal history and previous convictions, including the 2017 incident that got him probation.
Admittedly, the latter charge had resulted from “a heat of the moment act,” Deneen conceded. Still, he argued, didn't diminish the pattern of criminality in Blue's history.
“We gave him an opportunity to be out in public and he didn't take advantage of it,” Deneen said.
Nor, he added, had Blue ever bothered to seek treatment for his substance abuse problem when he was out.
Assistant Public Defender Nina Moody's counter argument was that Blue's didn't constitute “a substantial violation.”
Moody based her arguments on House Bill 7125, a 389-page criminal reform measure that the Florida Legislature passed in the last session and that is set to go into effect on Oct. 1, 2019.
Among the bill's many changes, it distinguishes between substantial and technical violations when it comes to probationers, with a technical violation defined as “an alleged violation of supervision that is not a new felony offense, misdemeanor offense, or criminal traffic offense.”
The bill's language, as Moody explained it, allows the probation officer to determine if a probationer on community control has committed a technical violation. If the answer is yes, Moody said, the probation officer must then determine the probationer's eligibility for an alternative sanctioning program, in lieu of filing an affidavit of violation with the court, as detailed in a subsequent paragraph.
The bill states that other than for specific and cited situations, the court “shall modify or continue a probationary term upon finding a probation in violation”, if, among other things, “The violation is a low-risk technical violation, as defined in paragraph (9)(b).”
Paragraph (9)(b) lists first and foremost among the cited low-risk technical violations “a positive drug or alcohol test result”, followed by 10 others that include failure to report to the probation office, failure to report a change in address or other required information, failure to attend a required class, treatment or counseling session, and failure to submit to a drug or alcohol test.
The new law-to-be, Moody argued, gave the court discretion to continue and modify Blue's probation to include substance abuse treatment instead of giving him prison time.
Moody pointed out that Blue had been gainfully employed prior to his latest arrest and that his employer, who was present in the courtroom, thought highly of him as an employee and was ready to hire him back once he was released.
She further noted, a point that the state conceded, that Blue's more violent crimes had been in the 1990s, and that the one in 2017, although classified as violent, had been a heat of the moment act.
Judge Dawn Caloca-Johnson appeared disposed toward leniency. She wanted to know, however, how many bites of the apple was a defendant to get under the new law before their chances ran out and the hammer dropped?
Her interpretation, Moody said, was that the current violation would count as a first under the new law.
“If he's brought back again on another violation, the court would not be bound by the statute,” she said.
Caloca-Johnson observed that even though the bill wasn't law yet, she appreciated the legislative intent. It would be unfair to Blue, she said, not to grant him a benefit that other defendants would soon benefit from.
“I will heed the legislative intent,” the judge said, making it a condition of the reinstated probation that Blue would have to undergo an evaluation by the Avalon Treatment Center in Tallahassee and participate in a drug-treatment program.