Monday, July 20, 2015

Limited Condition

State v. Bostwick, 2014 VT 97

By Ember S. Tilton

In this probation violation case, the SCOV continues to search for that elusive perfect condition of probation that will stand up to legal challenges and be clear to judges, defendants and probationers alike. Again, the Court fails to find it in the language, "You shall reside where your supervising probation officer directs."

See, simply by way of background, defendant was charged with violating the condition before he was released from jail. Yeah, that's right. 

You must live where your probation officer directs—even when you are incarcerated. How does that work!?! Well, the trial judge, being the curious yet practical type, wanted to know too. The State argued that he was getting close to his release date and had not found suitable housing. The trial judge was understandably not convinced and dismissed the violation complaint. SCOV does not have any issue with this ruling or comment further on it. So why do they even mention it? My humble guess would be this is just setting the stage to show how bad this probation officer (PO) was trying to violate Mr. Bostwick. The PO couldn't even wait for this guy to be put on probation to violate him. He filed a preemptive violation. Harsh.

Now, Mr. Bostwick is released and the actual show starts. Mr. Bostwick is on probation for lewd and lascivious conduct with a child.  He is not allowed to use the internet and is on a 24/7 curfew, but he calls landlords vigilantly, informing them that he is a sex offender and begging for an apartment. His wife sends emails for him, but he gets discouraged after he has no luck. He had kept a call log of each inquiry, but between mid-June and mid-July he only makes one call. But, it was a good one, because he found a place. 

But, then his PO says that's not acceptable because it is too close to a a school. The PO had given Mr. Bostwick an August 1st deadline to find something because he said that the Budget Inn where Mr. Bostwick had been staying was only temporarily approved. Now, August 1st rolls around and Mr. Bostwick is still in the Budget Inn. BOOM! Violated! Back to Court!

Now, this time the judge has something to work with. He sees that Mr. Bostwick had stopped looking for a place and had been living at the motel where the PO did not approve passed 8/1. The judge finds Mr. Bostwick had notice that he needed to find an approved residence. He also finds that Mr. Bostwick had not made every effort to do so after mid-June. Most importantly, the Judge can plainly see that Mr. Bostwick is not living in an approved residence or "where directed" as required by the condition. Pretty simple, right? 

Sex offender conditions are not meant to be easy; they are meant to protect the public. This guy is in violation, right? Right. So, The honorable judge has no choice: he must and in fact does, find Mr. Bostwick in violation and revokes his probation by failing to find approved housing and moving without prior permission from the PO.

WHOA—not so fast!

Now enter SCOV. Judge Dooley, writing for the Court, uses the word "indubitably." This brings me way back to my childhood and fond memories of Looney Tunes and Merry Melodies, which is likely the last time I heard that word used. But I digress.

Dooley indubitably finds that Mr. Bostwick had not changed addresses without permission. Next, the High Court finds that Mr. Bostwick did live where directed—the Budget Inn. Though this was temporary, the PO never "directed" Mr. Bostwick to a different residence. Though the PO was clear about what he expected from Mr. Bostwick (that he find an acceptable residence), SCOV likened this to modifying the condition. See, the PO never "directed" Mr. Bostwick exactly where to live, other than the list of approved temporary residences he was provided upon release which included the Budget Inn.

SCOV reverses the trial court's finding of violation. The takeaway is this—you can't violate someone who is not yet on probation and then violate him once he gets out for not doing something he was not actually told to do. Get it? Good!

But, if you're somewhat confused, you're not alone. Justice Reiber writes a separate opinion agreeing with Justice Dooley in substance but promoting a less-strict approach. While he agrees that Mr. Bostwick did not violate the condition at issue, he longs for the age when judges could employ their common sense and approach each case separately, leaving behind the rigid formulaic implementation of closely scrutinized legal rules and simply ensure that justice is done.

While SCOV continues to look for satisfactory language for various conditions of probation, we can rest assured knowing that many trial courts now impose a condition which reads, "You must reside at a residence approved by your probation officer." Hopefully, that will set things straight.

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