Violations of Probation

Facing prison and deportation on a Violent Felony Violation of Probation, our Client's plea was withdrawn, the charge reduced to a non-violent misdemeanor and the client was released with no probation or supervision! Read on to learn more

There are no routine cases if you are an aggressive and determined criminal defense attorney. Recently, a jailed foreign citizen hired us to represent him for a Violation of Probation on the felony charge of "Aggravated Assault with a Deadly Weapon." He had originally pled to a probationary sentence in front of an extremely strict judge and now, he was facing at the minimum a lengthy jail sentence, if not state prison, and then probable deportation to a country he no longer called home. These are exactly the kind of dire situations where our Firm's clients turn to us for help. When we were finished with the case, sixty days later, Mr. Berlin was released from jail, his original felony charge dropped down to a second degree misdemeanor charge of "Disorderly Conduct," with no probation or jail to follow and a strong defense against any possible deportation.

At Damore Delgado & Romanik, we frequently defend felony and misdemeanor Violations of Probation ("VOPs"). VOPs are challenging because the State's "burden of proof" is much lower; at a criminal trial, it is "beyond a reasonable doubt" but at a VOP hearing it is "preponderance of the evidence" (99% percent versus 51%) with more lax rules of evidence admitting more types of evidence - such as hearsay. Additionally, there is no "right to remain silent" so you can be made to testify against yourself! Many times, VOPs lead to prison sentences unless they are aggressively defended. While we have handled thousands of VOPs, when we visited Mr. Berlin in the Volusia County Branch Jail, we realized that his case would be anything but straightforward.

Meeting Mr. Berlin it was clear that he was a man of few words. Only after several minutes into that initial conversation did we detected an accent and cadence to Mr. Berlin’s speech. This lead us to wonder if English was actually his first language. After some questioning, we learned, for the first time, that Mr. Berlin's first language a hybrid English & Creole type language - Patwa - spoken only in his home island of Jamaica. as a first language. What is so "tricky" is that Patwa sounds a lot like English, but the sentence structure is often much different and much of the vocabulary is distinct. When spoken in short sentences, it can be extremely difficult to tell Patwa from English. Until we got involved, no one in the system had figured out that Mr. Berlin did not fully understand what was going on. They assumed he was just reserved, not that he did not grasp the nuance of the situation.

As a matter of right, defendants in our criminal justice system are entitled to an interpreter in their native language at all phases of their case – an obviously important right which protects defendants from "prosecution by confusion." We asked, and it turned out that Mr. Berlin had not been provided access to a Patwa interpreter when he initially pled to Aggravated Assault with a Deadly Weapon. In fact, he only pled because, based on his understanding of the proceeding, he thought he had to - he actually never committed the crime with which he was charged!

It also turned out that Mr. Berlin was not a citizen of the United States – he was in the US legally, just not as a citizen. Recent changes in immigration policy make it much more likely that someone with a felony will be deported upon a violation of probation or a new law charge. This meant that if he pled guilty to any violation of that felony probation, Mr. Berlin would very likely be deported back to Jamaica, even though he had been in the United States for years and no longer had close family in Jamaica.

With this information, we set to work crafting our strategy for Mr. Berlin’s case. We determined that, due to the likelihood of deportation, revoking Mr. Berlin’s plea and starting the case over from scratch was the best way to ensure that he got to stay in the country long term. First, we contacted the alleged victim in the underlying case, who agreed that Mr. Berlin should never have been sentenced on Aggravated Assault with a Deadly Weapon. Next, we pulled video of the initial plea which had been entered months before, and we reviewed the tapes for any other issues we could find. It is here that we learned that Mr. Berlin had never been warned by the Judge that his plea could result in his deportation, a warning to which he was entitled by law, nor did his public defender ever warn him of this possibility. Now we had three issues to raise as we attempted to revoke his initial plea. You can read our Motion For Post Conviction Relief, which also gives more examples of how Patwa differs from English, HERE.

Because the law is clear and the video supported our Motion, the State agreed that Mr. Berlin’s plea was improperly entered. After much diligence and after speaking with the alleged victim in the underlying case, the State agreed with our position that Aggravated Assault with a Deadly Weapon was not supported by the facts. As part of a plea agreement, we negotiated that Mr. Berlin be allowed to change his plea from Aggravated Assault with a Deadly Weapon, a third degree felony carrying with it a punishment of up to 5 years in prison, to Disorderly Conduct, a second degree misdemeanor, the least serious level of criminal offenses in our justice system, and one that is unlikely to result in deportation.

To go from a serious felony charge and possible deportation to a second degree misdemeanor - in only around sixty days - is an almost unheard of post conviction result. Now, the results we obtained for Mr.Berlin are extraordinary, but while we cannot promise identical results in all cases, the constant is that our office fights hard for our clients, goes the extra distance required and looks at the whole picture. We could have gotten Mr. Berlin back on probation and closed our file, but we took the time to correct an unjust situation and preserve Mr. Berlin's long term freedom. That is the kind of work we commit to! If you or a loved one are facing a criminal prosecution or need help with a post-conviction matter, do not hesitate to contact one of our attorneys to learn what we can do for you. Our team of attorneys, including a Florida Bar board certified expert in criminal trial law, is available 24/7 to fight for you.