PROBATION AND ZOOM

Probation means always having to say you're sorry. 

Some of the greatest injustices have occurred through probation violation hearings, especially when the defendant is later acquitted of the underlying charge. 

Defense attorneys are now rightfully concerned with having Judges adjudicated probation violation hearings via Zoom. With that in mind and with permission of the  FACDL Prime Minister of Defense we publish this:

As we navigate through the COVID-19 unknown, we have come across issues of first impression that we must now litigate.  One of those very issues comes in the form of Probation Violation Hearings.  One position is the Court may force these hearings to move forward via remote videoconferencing because it is not specifically excluded in the Supreme Court AOs much like jury and non-jury trials are.  FACDL-Miami member Rich Cooper’s client is being pushed by Judge Miranda, who is contemplating holding the PVH via Zoom, over the defense’s objection. 

 

That being said, we all know that an AO doesn’t obviate the Constitution.   It is the position of FACDL-Miami that, unless the defense consents (which might make sense in some cases) this is a violation of the constitutional right to counsel, right of the defendant to be physically present, and confrontation clause.  It also violates Florida Rule of Criminal Procedure 3.180.  We have filed a pleading on one case already, and FACDL statewide has also weighed in in opposition, but this is the sort of issue where one case could open the floodgates.  If you have an issue of a judge trying to set a Zoom PVH in one of your cases, and you oppose it, please reach out to Dan Tibbitt directly, at Dan@Tibbittlaw.com.

 

I want to thank several people for their quick and diligent work on this matter.  First, to Rich Cooper for having the foresight to recognize that his client’s situation has the potential to set bad precedent for the rest of us, and working with FACDL to file the objection.  Diana Johnson (Johnson and Lufrano, PA) and Jackie Perczek (Roy Black, PA) were incredibly instrumental in researching, drafting, and articulating our position and supporting arguments.  Past Presidents H. Scott Fingerhut and Jude Faccidomo have been fantastic in leading this charge.  And we couldn’t have done it without Dan Tibbitt, who when called, immediately accepted his “voluntold” position and took off running.  I should note, this was just 1 or 2 days after he volunteered to work on another Amicus brief.  This group drafted the finest (and longest) Motion for Continuance I have seen.  Thank you to Rich, Diana, Jackie, Scott, Jude, and Dan for all your hard work.

Best,

Matt