When you are placed on probation, you will be given a list of probation conditions. Violate one of these conditions, and you may face heavy penalties. The penalties would depend on various things, including the nature of the original underlying charge, the seriousness of the violation itself and other circumstances, such as whether you are facing a first violation. If it is a second one, you will be perceived to have been fortunate that you were given another chance after a first, and will face the potential for much harsher treatment.
Below we will go over the details of how probation violations occur in Florida as well as possible strategies you can use to fight against your violation charges.
Understanding Florida Probation Violations
Any time you do not comply with the conditions of your probation, you will be subject to a probation violation. A violation may occur at any point during your probation period. Very importantly, though the prosecution must prove that the violation was willful and substantial.
There are many ways you can violate the terms of your probation. Common violations include the following examples:
- Committing any other criminal offense
- Failing to pay court-ordered fines or restitution to victims
- Not meeting with your probation officer when required
- Not informing your probation officer of a change of address
- Traveling out of the jurisdiction without permission
- Not passing a drug test
- Using or possessing illegal drugs or, if forbidden, alcohol
- Violating an order of protection or visiting prohibited areas
- Making an untruthful statement to a probation officer
Upon learning of a violation, the probation officer would present an affidavit to the presiding judge in which the officer swears that a described violation has occurred. You may be issued a Notice to Appear in court to answer to the charge, but more often than not a Violation of Probation warrant would be issued, and you would be taken into custody. Court proceedings would follow.
An experienced Florida attorney would first set a hearing at which a request for release on bond would be made. Ultimately, after that attorney completes a full investigation into the alleged violation, there would be a trial, unless the parties reach an agreement, which would then be presented to and likely accepted by the judge.
Again, the burden of proof is on the prosecutor, who must show that the claimed violation was willful and substantial. The prosecutor would present witnesses or other evidence to support the allegation(s), and your attorney could cross-examine those witnesses. Through your attorney you could present your own witnesses and evidence to contest the claimed violation(s).
At the conclusion of such trial, commonly referred to as a Final Hearing, the judge would render a decision. If the judge determines that a willful and substantial violation did occur, a sentence would be imposed. Although such sentence would take into account the nature of the violation, the reality is that the sentence applies to the original offense itself. Many people are not aware that probation is really just a tolling of the potential original sentence relating to the original crime. That means that if you successfully complete the term of probation the case is over. Otherwise, the judge can impose up to the maximum sentence that could have originally been imposed when you were placed on probation.
What Defense Strategies Can You Use to Battle Probation Charges?
Here are some examples of defenses you may be able to use against probation violation charges:
Conditions improperly disclosed. If you did not receive proper instructions by your probation officer relating to conditions of probation and a violation resulted, you may not be held responsible. That is an example of a violation not being willful.
The violation occurred, but it was not substantial. Examples of that would be having been late for a probation appointment, or neglecting to attend a session of a required class.
If the violation is based on a new arrest, the newly charged crime was not committed. Although the prosecutor has the burden of proof, just as is the case as to the original charge for which probation was ordered, he or she does not have to prove the alleged crime beyond every reasonable doubt. In this context, the burden is to “satisfy the judicial conscience” that the new crime was committed. Still, the same defenses would apply as would have been asserted as to the new crime as if the original standard of proof was in play.
The evidence of the violation is based on hearsay only. For example, the prosecutor might call as a witness a police officer who investigated the crime which is the basis of the violation and made the arrest, and who would testify as to the information provided by witnesses which caused the arrest decision. But if the actual witnesses to the crime do not testify, the violation has not been proven.
Unfortunately, many people who are placed on probation believe that the original case is over and that they are no longer in potential jeopardy. They are wrong. A probation violation is a serious matter. You need the help of a skilled attorney to help you fight your charges. Reach out today for a free initial case review.
About the Author:
Attorney David W. Olson is the founder of the Law Offices of David W. Olson in West Palm Beach. He has been practicing criminal law and successfully representing clients throughout the State of Florida for over 30 years. Throughout his legal career, Mr. Olson has been honored numerous times for both his dedication and excellence in criminal law. He proudly holds the Martindale-Hubbell AV Rating, as well as being recognized as a Top 100 Trial Lawyer (2013), in the Nation’s Top One Percent of attorneys (2015), and as a 10 Best Member of the American Institute of Criminal Law Attorneys (2015). He has even received commendations from members of congress and other public officials for the fantastic work that he’s done. Mr. Olson graduated from the University of Florida’s Fredric G. Levin College of Law in 1981 and has been a member of the Florida Bar since 1983.