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Introduction to Florida Probation Violation – Obligations and Limitations
Probation in Florida is governed by Florida Statutes Chapter 948, and specifically violations of probation are governed by Florida Statute 948.06. Florida probation violation cases are discussed extensively in Florida law.
If you are on probation in Florida the first thing to know is that your sentence from your original charge never stopped. You are still in danger of being resentenced at any time by the court that put you on probation in the first place. Yes you are free in the community and allegedly there is some interest in your rehabilitation and helping you be a better member of society, in practice you are on pretty thin ice, and probation is a system designed to catch you messing up, and is not designed to be lenient or help you in any way.
A Probation Violation is a serious offense that occurs when a probationer breaks the conditions of the probation ordered by a court; which could result in a revocation of the probation and a number of severe penalties, such as time in jail or prison time. When placed on probation you are ordered to complete certain conditions, and you are prohibited from doing certain activities.. A probation officer is the officer assigned by the judge to your case when you were first sentenced and they will oversee if you are in compliance with your obligations and limitations.
Obligations Could include but are not limited to:
Limitations could include but are not limited to:
Your probation officer, if they believe you have failed to complete an obligation, or have exceeded a limitation, will essentially formally accuse you of violating probation by filing a violation affidavit and report with the judge. Then the Judge will issue either a notice to appear or issue a warrant for your arrest. In some circumstances a judge will order that no action be taken against you for example with an extremely minor infraction that you have quickly corrected with your probation officers agreement.
Because your probation officer should prove that you indeed violated the probation, you have the opportunity to fight your charges and prevent the consequences of a probation violation. That is why it is important to have experienced legal representation at court.
Probation Violations can be either technical or substantive, Which are both considered the continuation of the original criminal case
The Technical Violation occurs when the offender breaks any of the rules the court has set for the probation. Examples of the technical violation includes but not limited to fail to attend a meeting with the probation officer, test positive for drugs or alcohol, fail to pay fines or file a monthly probation report, as well as, leave the county or state without prior approval.
The Substantive Violation of Probation is when the offender has been charged with a new criminal violation of some kind. This is generally the most serious kind of violation of probation.
Probation Violation Hearing, Legal Rights
It is very important you know your legal rights to eliminate any additional penalties or consequences when you are facing Probation Violation.
First, you have the right to receive a written copy of the believed violations against you. Second, you must be heard by a neutral judge in Court. Third, you have the right of an attorney to represent you and present evidence to support the case. Lastly, you have the right to discredit evidence against you and present arguments on your own behalf.
Probation Violations
A probation violation is established when the prosecution meets a basic standard of proof to show that the probation violation was willful and substantial, and must be proven with more that hearsay alone. Keep in mind that statements of the probationer are not going to be considered hearsay by the Court, so a probationer’s statements can land them in big trouble.
Standard of Proof
The trial court can only revoke probation if the prosecution presents enough evidence to show that the defendant substantially and willfully violated a condition of their probation. Determining if a violation was both substantial and willful has to be considered on an individual basis. The state must prove that the defendant violated their probation by a “preponderance of the evidence.” This means in practice that the State presents their case first, just like in a trial, and you will have the ability to cross examine witnesses and challenge them in the State’s case-in-chief.
Having an experienced litigator to help you with a Florida probation violation is invaluable, since all the stress and difficulty of a trial and live cross examination will come to a head very quickly with virtually no discovery in a VOP proceeding.
Probation Violations Must Be Substantial and Willful
Florida law states that a defendant can only have their probation revoked when he or she has willfully violated a condition of their probation. A trial court has a lot of discretion in determining a defendant has deliberately and willfully violated their probation, which essentially comes down to was any act committed on purpose, or was there some justification, excuse, mistake, or simple neglect.
If a defendant has made good faith reasonable attempts to follow through on the conditions of their probation, then their probation violations cannot be considered willful. Florida probation violations often come down to state of mind, which is frequently an arguable situation.
Challenging Violations of Probation
There are many ways to overcome the challenges of a violation of probation and avoid the potentially long prison sentences or jail times. Your case may have one or more of the following issues or problems which could help you if you’ve been accused of violating probation. Each issue has its own area of law and huge repercussions if they are present in your case.
Tolling or Jurisdiction: There are strict time limits governing the Court’s ability to keep you on probation. You need to be aware of the rules governing your time on probation.
Additional time to comply: It matters if you have been ordered to complete a condition and even if violated you still have time to get it done.
Illegally conditions: Sometimes you are told to perform some action and the probation officer or original orders are illegal.
Due process- insufficient notification of what acts or inaction could violate your probation. This may be a defense.
Lack of jurisdiction: Your case may involve the COurt acting when it has lost the ability to do so according to Florida law.
Additionally the law gets even more complicated if you have been designated a youthful offender, or your case involves the interplay of a violation of probation and a new law offense and the 90 rule which is outlined in 948.06. All of this is in addition to any important sentencing considerations which may be connected to your original scoresheet and required sentences according to the CPC. Florida probation violations are very common, and there are many concerns and pitfalls with many situations.
Penalties for Violation of Probation
This is the most significant and frequently misunderstood aspect of violations of probation. If the Judge finds you in willful substantial violation of your probation they can then sentence you up to the maximum possible sentence for the charge you were put on probation originally. So for example, if you are on probation for three years after entering a negotiated plea to sale of cocaine, but you violate that probation after two and half years, the judge can then sentence you up to 15 years in prison with no special justification. Don’t think that situations like this do not occur, because it happens all around Florida for all manner of offenses. Don’t pretend Florida probation violation can’t happen to you if you are on probation.
Get the most experienced and knowledgeable attorney you can to help you with a Florida probation violation. Call violation of probation attorney Matt Landsman to get the best outcome possible. The penalties can be severe, and the prosecution will treat these cases very harshly in all parts of the state. Contact Certified Trial Expert Matt Landsman today for your free consultation.
Have you been accused of a crime in Gainesville or North Florida? Call or contact us online to schedule a free consultation in Gainesville Florida.