Violation of Probation
While being on probation can seem like a cakewalk compared to jail or prison, probation can be very hard for many Defendants to complete successfully, mainly due to all of the conditions of probation he or she agrees to. If one of these conditions is violated (even being late to a scheduled appointment) the individual can face serious jail time.
When a Defendant is found guilty or pleads no contest or guilty and is placed on probation, he sits down with his probation officer within 24 hours and is explained the conditions of his probation. The Department of Corrections supervises the probationer, and has a list of common conditions, and some special conditions the judge imposed, that the probationer must sign and agree to. There are the obvious conditions like not committing new offenses and not drinking or using drugs, to the not-so-obvious ones like having a curfew, or agreeing to a search of your person, place, or things whenever law enforcement or the Department feels like it (Yes, that’s right, when you’re on probation you essentially lose your 4th amendment right to be free from unreasonable searches when you’re home!). Regardless, the probationer must follow each and every condition or the probation officer will file an affidavit of violation with the Court that sentenced you originally.
There are 2 types of VOP’s, technical and substantive. Technical violations are when its alleged that the probationer violated a condition such as not attending a mandatory meeting or failing to follow curfew. Substantive violations are when the probationer commits a new criminal offense. This does not include speeding and other traffic infractions, but any new criminal offense while on probation will trigger a violation and warrant.
Once an affidavit of violation is filed with the Court, the Court will generally issue a warrant for the probationer’s arrest. This warrant will list the bond amount for the probationer once he’s arrested, although for many misdemeanor and all felony VOP warrants, often times zero bond is listed, meaning the probationer cannot bond out. Fort Lauderdale violation of probation attorney Mark Lowry can file a motion for in-court surrender, requesting that we surrender in court instead of being arrested or going to jail, with the hope that we can resolve the case right at that point without the probationer having to go to jail at all.
If the probationer is arrested, a first VOP hearing will take place, where, much like an arraignment, the judge simply advises the probationer/defendant of the allegations made by the Department officer, asks him whether he admits or denies them, and whether he has an attorney. Typically, just like in any criminal case, the Defendant should deny the charges so we can evaluate the case and the State’s evidence.
The second, and usually final hearing is when the State must prove their case to the Court. There are no jury trials in VOP’s, so its a bench trial, meaning only the judge is the decider of guilt or innocence. If its a technical offense, then the State will bring in the probation officer to describe how the probationer agreed to all the conditions of his probation by evidence of his signature, and then testify about how he didn’t, for example, show for a probation appointment. If its a substantive offense, the State must bring in the witnesses or alleged victim(s) to prove the new crime occurred. Unlike a criminal trial where the State must prove the charges beyond a reasonable doubt, in VOP hearings the State must only “satisfy the conscience of the Court”, which of course is a very low burden to meet. Criminal Defense Attorney Mark Lowry would cross-examine the witnesses to show their bias or untruthfulness, and call witnesses of our own to rebut the State’s case. If the Court believes the State’s witnesses, he or she may then sentence the Defendant to whatever he could have received in the original case he was put on probation for. For example, if he was originally placed on probation for a 3rd degree felony like Possession of Cocaine, the maximum penalty he could have received on that charge was 5 years prison. So if convicted of a violation of probation, the Court can sentence him up to the remainder of the 5 years that he has not already served on probation, either with more probation, jail or prison, or a combination of the two.Technical vs. Substantive Violations of Probation
A violation of probation under Florida Statute § 948.06 can either be a technical or a substantive violation. A technical violation involves a probationer violating a condition of their probation, and might include being late to or missing a meeting entirely, failing to report to a probation officer, or failing to pay required fines. On the other hand, an allegation of a substantive violation of probation involves charges of an additional criminal defense. The probationer will face potential charges for the new criminal offense as well as the charge for violation of probation.Penalties for Violation of Probation
A violation of probation can result in any one of the following: an extension of probation time, incarceration, increased jail time, additional conditions placed upon an individual’s probation, or the revocation of probation. This last potential outcome can pose serious consequences because if probation is revoked, under Florida law a judge has the power to instead impose the maximum penalty for the initial crime the probationer was charged with.
For instance, an individual may be placed on probation after being charged with a Florida crime punishable by up to 5 years prison time. If the probationer is found to violate the conditions of his probation, the judge can revoke the probation and instead impose a prison sentence up to the remainder of 5 years minus the probation time already completedDefenses are Available
Defenses to a violation of probation charge are available. A probationer may sufficiently demonstrate that he or she has fully complied with the conditions of probation, or that no substantive violation of probation has occurred and the probationer is innocent with respect to a new criminal offense they have been charged with. Alternatively, there may not be enough evidence to demonstrate that a violation of probation has actually occurred.
If you are facing an issue with your probation, consulting with an experienced criminal defense attorney is the best way to ensure the protection of your rights and to ensure the best possible outcome. Contact Fort Lauderdale probation violation attorney Mark S. Lowry to discuss any potential concerns involving a violation of probation.