Probation Violation

Probation in Florida is an alternative sentence issued instead of incarceration, or to reduce the length of incarceration. It comes with a set of conditions that you must adhere to during the set period.

Failure to meet these guidelines counts as a probation violation with consequences such as revocation of your probation, fines, stricter terms, and jail time.

In Florida, courts take probation violations seriously and seek to penalize offenders so that they can take responsibility for their actions. Arnold Law provides defense services to those who have been charged with a probation violation.

Here is a guide to probation violations in Florida:

Overview of Probation Violation

A probationary sentence in Florida refers to a community supervision program where the probationer must comply with certain court-ordered terms and conditions in place of incarceration.

The court will sentence you to one of the different forms of probation available under the law. Some of these types include:

• Standard probation, which requires that the probationer report to the probation officer every month. When you are in standard probation, you must also adhere to the set terms of probation.
• Administrative probation is a lenient form of probation where you need to adhere to probation conditions, but you do not have to meet with the probation officer.
• Drug offender probation is a special program specifically for individuals convicted of drug crimes. The court might impose additional conditions such as random drug tests and attendance of a substance abuse program.
• Sex offender probation that targets people convicted of sex crimes. The program involves a treatment program and regular meetings with the probation officer.
• House arrest is the strictest type of probation that involves limited movement and constant surveillance. When you are on this type of probation, the state will monitor you closely to ensure you do not leave the designated area. Such monitoring might include the use of an ankle bracelet.

Except for the regulations and meetings you have to attend, you can lead a normal life while on probation. However, if you are on house arrest, you have to seek permission from the court to visit non-designated areas.

A probation violation under Florida law refers to the willful and substantial failure of a probationer to adhere to the terms and conditions of probation. The strictness of the law on probation violations arises due to the premise that probation is a privilege, not a constitutional right.

Probation is not a sentence either since it focuses on the rehabilitation of the probationer to make him or her a law-abiding and productive member of the community. By extension, probation also protects the society, when its rehabilitation goal is achieved.

The court imposes conditions on the probationer to ensure that it meets its goals of rehabilitation of the probationer. Some of the terms and conditions of probation include:

• Payment of fines and supervision costs
• Payment of victim restitution
• Reporting to the probation department monthly
• The requirement to submit random drug tests and screening
• Avoiding the use of alcohol, drugs, and prescription medicines (except those with a valid prescription from the doctor. you must also report to the probation department if you are on prescription medication.)
• Avoiding contact or association with people who commit criminal activities or places linked with criminal activity
• You are not to possess a firearm.
• Reporting all contact with law enforcement, even if you were not the offender, for example, if you were a passenger in a friend’s car when he was pulled over.
• Avoiding new arrests for other offenses
• Maintaining employment or looking for employment if you are unemployed

In addition to the above conditions, the court might give specific terms and conditions you must obey. These include:

• Completing DUI or substance abuse class
• Attending and completing an anger management class
• Completing your community service hours
• Getting a high school diploma

Violating these conditions might result in a violation of probation (VOP) warrant based on the nature of the violation. A probation violation can fall into two categories – technical and substantive violations.

Types of Probation Violations

You can violate probation in Florida in one of two ways. You can either commit a substantive or technical violation of probation.

Substantive violations of probation occur when you commit a new violation of the law, for example, when you are arrested for committing a new crime. The crime could be a misdemeanor or a felony, but the court could revoke your probation if you are convicted for the new crime.

Substantive violations require direct proof that links the defendant to the offense. In such cases, the court will not rely on heresy to charge the probationer with a violation of probation.

Even if you are not convicted, the court might still charge you with a probation violation. If you are working with a defense attorney, he or she could negotiate on your behalf to have your probation reinstated. If the court reinstates your probation, it will impose additional and often stricter terms and conditions.

Technical violations occur when you fail to adhere to the terms of your probation. Some of the violations that are technical violations include:

• Failing to pay court fines
• Failure to pay restitution
• Leaving the designated areas
• Failing to adhere to curfew requirements
• Failing a random drug test

Technical violations can lead to the reinstatement of your original sentence in jail or prison, depending on the circumstances. Usually, you will go through a hearing to determine whether the violation was willful.

The standard of proof required in these cases is usually lower than that of criminal cases; therefore, it is easy for the court to prove that you committed a probation violation.

A willful violation is what the probationer could have prevented by making reasonable efforts to comply with the conditions of probation.

However, if the probationer takes reasonable steps to fulfill the terms of probation, the violation is unwilful. Here are some examples of non-willful violations that will help you understand your violation:

• You fail to secure employment even after substantial attempts and are therefore unable to pay restitution.
• You fail to report to a community service site because you have been turned away on previous occasions due to a lack of work at the site.
• You had a mental illness that prevented you from completing a drug treatment program
• You were arrested for an unrelated offense, which made it impossible to submit your monthly report to the probation officer.

During the hearing, the court will determine other factors such as:

• The willingness and ability you have to pay your financial obligations, including court fines and victim restitution. You will have the burden of proving that you are unable to meet these financial obligations. If the court can find evidence that you have the means to pay, but you willingly refuse to do so, you violate your probation terms.
• If the violation involves failure to enroll in or complete a court-ordered drug or mental health treatment program, the court will determine whether a timeline existed. You will violate probation if you were supposed to enroll or complete it by a certain time, yet you failed to honor the order. However, if no deadlines existed, failure to complete the program, the court cannot revoke your probation. The court might modify the terms of your probation.
• If the violation involves a failed drug test, a person with experience and training in drug and narcotics testing must have authenticated the results. The judge could rely on the testimony of the probation officer if he or she has state certification to administer the test, and he or she provides testimony about the nature of the test, the process involved, and the experience he or she has.

Probation Violation Hearing

Probation violations are violations of a court order. A probation violation hearing usually commences as a punishment, not for criminal behavior, but for violating a court order; therefore, you can be penalized for a violation even if the criminal court does not convict you.

Law enforcement officials or a probation officer are required to arrest or report any suspected violation of probation. The officer could arrest you or request another law enforcement body to facilitate the arrest even without an arrest warrant.

Upon the finding of the violation, the law enforcement body will submit a report to the court. Alternatively, if the probation officer finds you in violation, he or she will submit an affidavit of probation violation to the court for a low-level violation, or a new misdemeanor offense.

If you committed a felony, the probation officer would file a Department of Corrections Violations Report.  The probation officer makes a sworn statement that he or she has a reasonable belief that the probationer has committed an offense.

In the statement, the probation officer will explain the reasons why he or she reasonably believes that you have violated the terms of probation.

The judge might issue a warrant of arrest if he or she has reasonable grounds to believe that the probationer violated the terms of his or her probation.

If the warrant is due to a violation under section 948.06(1) (b) of the Florida statutes, the judge might issue a notice to appear to the probationer. The probation officer can also issue a probationer the notice to appear.

The proceedings of the probation violation hearing will depend on the type of probation violation. The court will inform you of the violation on your first appearance if the probation is for a new violation (substantive violation).

If you admit the violation, the court might order you to go before the court that issued your probation. If you do not admit the violation, the court can take on of three actions:

• Release you with or without bail (the law has restrictions on the release of offenders who committed violent crimes such as murder or are registered, sexual offenders)
• Commit you
• Order you to be brought before the court that placed you on probation

Violent offenders who violate the terms of felony probation cannot be released with or without bail. The court, in this case, will apply the anti-murder act in cases where:

• The probationer is a violent offender.
• The offender is a habitual violent felony offender (have been convicted of violent felony offenses for three times)
• The current probation violation is not solely based on the failure to pay restitution or court fines.

The court might further impose requirements on probationers who are violent felony offenders of special concern. This group of offenders consists of offenders who are on:

• Felony probation
• Felony [probation and have violated the terms of probation by committing a qualifying offense
• Felony probation and is a habitual violent felony offender.
• Felony probation and is a sexual predator.

Some of the qualifying offenses include:

• Kidnapping and related offenses (s. 787.01, s. 787.02(3), and s. 787.025(2)(b),(c)
• Murder or attempted murder
• Aggravated battery
• Sexual battery
• Lewd or lascivious battery
• Robbery
• Sexual performance by a child
• Computer pornography
• Poisoning food or water
• Abuse of a dead human body
• Burglary offenses
• Arson
• Aggravated assault
• Aggravated stalking
• Aircraft piracy
• Treason

The department of probation might send a notification letter with details of the violation if you committed a technical violation of probation.

The commencement of probation revocation hearings usually tolls your probation, but the court retains jurisdiction over the probationer in case you violate any probation terms.

You have certain rights in a probation revocation hearing such as the right to:

• Legal counsel
• Represent yourself
• Give your testimony
• A notice of the alleged violation
• A public and fair hearing
• A mental examination if it was the cause of the probation violation.
• The freedom from an unlawful search
• The right to examine and cross-examine witnesses

The court will make findings of the fact and submit copies of the findings to the court that sentenced you on probation, you, and your attorney.

The court that placed them on probation will decide whether to modify the terms of probation, revoke probation, or continue with community supervision.

Probation violation hearings have less protection than criminal cases, which have a presumption of innocence until you are proven guilty. Some of the limitations that make it easier for you to receive a probation violation penalty include:

• Probation violations do not have a statute of limitations
• You do not have the constitutional right to request a bond
• You do not have the right to a jury trial or a speedy trial
• The court could admit heresy in a probation violation hearing, but it cannot use it as the sole grounds of a violation
• The silence of the defendant in the hearing is acceptance of his or her guilt in violating probation terms
• The court could force you to testify against yourself based on your testimony
• The hearing has a lower standard of proof (preponderance of the evidence)

The burden of proof in probation violation cases is as follows for the state:

• The state must prove that the probationer was, and knew that he or she was on probation
• the state must prove the violation by a preponderance of the evidence (to satisfy the court that the probationer violated the terms of probation)
• the state has the burden to prove that the defendant willfully refused to pay the financial costs such as fines and restitution when he or she could

Consequences of Probation Violations

Violating your probation can have severe consequences depending on the nature of the violation. The court relies on establishing whether the violation meets the ‘willful and substantial’ definition regardless of the type of violation.

The consequences of violating probation can also vary based on several factors, including:

• The nature and circumstances of the probation violation, including the new offense
• Your present conduct including your criminal history
• Your previous conduct while on probation for the current offense, or previous offenses
• The evidence against you
• Your criminal history including offenses you were charged for but never convicted
• Familial and community ties
• The likelihood that you will commit another crime
• Other facts that the court considers relevant

A probationer who commits a first, low-risk violation of probation might qualify for a mandatory modification or continuance of his or her probation. In this case, the court cannot revoke your probation.

A judge can take one of three actions if you admit to or are found to have violated a probation condition:

• Revoke probation
• Modify the terms of probation
• Reinstate probation

Committing a serious violent felony or a new criminal offense while on probation is a common consequence of violating probation. The judge will adjudicate your guilt and impose the sentence for the underlying offense.

Note that the judge has the discretion to impose the maximum sentence for the offense, regardless of the defenses presented in the criminal case. This is usually the case for violent felony offenders of special concern (as described above). The court cannot revoke your probation if the violation was not alleged in the affidavit.

In cases where you do not qualify for prison, the judge will impose a new probation sentence regardless of the previous probationary period.

First-time offenders who commit a technical probation violation often get a modification of probation. The modifications include an extension of the probationary period or imposing additional probation terms.

The final option is that the judge might issue a warning and allow you to continue on probation. This is a rare occurrence but might be available for low-level, first-time violations.

Defenses to Probation Violation

You have the right to fight a violation of probation charge. You must provide evidence that the violation was not willful. For example, if you have been searching for a job, to manage your court-ordered financial obligations, you are not willingly violating your probation if you have no funds to pay.

Drug violations are the common probation violations that you can fight by showing that you were in legal possession. This is especially the case if you had a valid doctor's prescription to have the drugs you had.

If the contraband was not found on your person, you could challenge the violation by asserting that the drugs did not belong to you, nor were you aware of their existence. If the violation is based solely on the finding of the contraband (without results such as a positive drug test), the court cannot revoke your probation.

Curfew violations are another leading cause of probation violations. You can fight the allegation by asserting that:

• You complied with the curfew.
• Circumstances outside your control affected your ability to adhere to the curfew; for example, you were late because the evening bus you took after work was delayed due to a storm.

You can assert and prove that you are genuinely unable to pay court fines and victim restitution. The state cannot punish for the difficulty in finding employment even after you have made significant steps to secure employment.

In most cases, you can avoid a probation violation of failing to pay your financial obligations by notifying your probation officer. He or she can negotiate with the court to waive or reduce some obligations, especially court fines.

Another defense is that you had a medical emergency, which made it impossible to adhere to a probation requirement.

You can also assert that you are unaware of a special condition imposed, especially if you were never informed of a special condition by the sentencing judge or your probation officer.

Find a Probation Violations Attorney Near Me

Probation violations can effectively hinder your freedom if the court finds you guilty. However, you can fight these charges with the representation of an experienced attorney who has knowledge and expertise in handling probation violations.

At Arnold Law, we understand the severe consequences of violating probation, especially if the court chooses to revoke your probation. We evaluate the alleged violation, your reasons for the violation, and any legal defenses we can apply to defend you. We will also represent you at the probation violation hearing.

Contact us today at 904-264-3627 for a free consultation if you have violated the terms of your probation.