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Violation of Probation After a Florida Grand Theft Auto Conviction

If you are convicted of grand theft in Miami, you may be sentenced, at least partly, to probation. There are number of conditions you must follow if you are put in probation, and if you fail to meet those conditions, you may be sentenced to prison. It is always best to reach out to a Miami grand theft attorney if you have questions that relate to a charge of this nature.

In a recent case, a defendant sought to reverse the lower court’s order revoking probation and his sentence of 5 years imprisonment. The appellate court reversed, concluding there was no substantial or competent evidence to support the lower court’s finding that the defendant willfully and substantially violated the probation conditions that he not possess firearms or possess cannabis with intent to sell. It did find, however, that he’d violated one probation condition by associating with people involved in crime.

The case arose in 2013, when a defendant pled guilty to grand theft of a vehicle and was put on reporting probation for three years. This probation was modified and lengthened for a year in 2016. The following year while driving, the probationer was stopped by the police for an infraction. Three other people were riding as passengers in his car, in both the front and back seats. The police officer could smell marijuana coming from the car when he stopped it.

Everyone was ordered out and a search was conducted. Marijuana and a gun were found under the back seat. The police learned the handgun had been stolen. Both the probationer and the two people in the backseat were arrested for possessing marijuana with intent to sell. Meanwhile, the passenger in front was permitted to go.

The probationer was charged with violation of probation for possession of marijuana with intent to sell, possession of a handgun, for associating with people involved in crime, and for failing to pay the costs of probation supervision. When arrested the probationer claimed no knowledge of the drugs or guns. The officer would later testify that there wasn’t proof he’d had dominion or control over the drugs or gun, except that he owned the car. Also the driver’s seat was reclining such that it was possible for the driver to reach into the back seat.

The lower court determined that the probationer had substantially and willfully violated probation by possessing the firearm, possessing the drugs with intent to sell and by associating with those involved in crime. It revoked his probation and he was sentenced to five years imprisonment. He appealed.

The appellate court reviewed the case, explaining that in order to revoke probation, the lower court needed to decide whether the probationer willfully and substantially violated the conditions of probation. The government had to prove the probationer had actual or constructive possession of the items at issue. The government couldn’t show that the guns and drugs were in the probationer’s hand or person or even within ready reach of him. To show constructive possession instead, they had to prove he knew those items were there and exercised control and dominion over them and that he knew of their illicit nature.

When contraband isn’t found within a defendant’s exclusive control, his knowledge that it was there needs to be shown through independent proof such as witness statements or the defendant’s statements or incriminating circumstances not including being close to the items at issue. The evidence didn’t show that the probationer had exclusive control over the place where the contraband was or that he could reasonably reach under the back seat from the driver’s seat. There wasn’t independent proof of his control.

The appellate court did find that he willfully and substantially violated probation by being associated with people involved in crime since there was a strong marijuana smell coming from the car and marijuana was packaged for sale and located under the backseat where two passengers were sitting. The smell was enough to put the probationer on notice it was inside his car.

The appellate court reversed the order as to two grounds, but found that there was enough proof to support the conclusion that he’d violated a condition of probation. It sent the order back for the lower court to reconsider and decide whether to impose the same sentence based on a single probation violation of associating with those involved in crime.

Theft is a serious charge. If you’re accused of, investigated for or charged with a theft crime  in Miami, you should hire a skillful criminal defense attorney. Call The Hoffman Law Firm at (305) 249-0090 or (800) 223-1866, or contact us via our online form.

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