Probation is a form of community supervision in Florida requiring an offender to abide by court-ordered terms and conditions of probation in lieu of a sentence of incarceration. A violation of probation (VOP) occurs when a defendant willfully and substantially fails to comply with the terms of his or her probationary sentence.
Understanding how probation violations work in Florida, including possible penalties and available defenses, is critical for anyone facing allegations of violating probation.
Common Types of Probation Violations
There are a number of ways that probation can be violated in Florida. Below are some examples of common probation violations:
- Failure to report to a probation officer
- Failure to pay a court-ordered fine
- Failure to pay restitution as ordered by the court
- Failure to perform community service
- Violation of a restraining order or order of protection
- Being arrested or charged with a new crime
- Drug or alcohol abuse
Violation of Probation Proceedings
A VOP proceeding is much different than being charged with a new criminal offense. Because a person has already been sentenced to probation, they have fewer legal protections than someone charged with a new crime.
Some examples include:
- No statute of limitations
- No right to a speedy VOP hearing.
- No constitutional right to request a bond while awaiting a VOP hearing.
- No right to a jury trial in a VOP hearing
- Hearsay is admissible in a VOP hearing.
- A probationer can be forced to testify against themselves.
- Guilt is proven by a preponderance of the evidence, not beyond a reasonable doubt.
As you can see, it is much easier for the State to prove a probation violation than a new criminal charge. Representation by an experienced probation violation defense attorney is a must, as judges and prosecutors often pursue harsh sentencing and increased criminal penalties for probation violations.
Violation of Probation Penalties
If a probationer admits to violating probation or a judge finds a probationer in violation after conducting a hearing, a judge is required to take one of three actions:
- Revoke Probation
- Modify Probation
- Continue/Reinstate Probation
Revoke Probation
Revocation of probation is the most common consequence when a person violates probation by committing a new criminal offense or when violating probation for a serious or violent felony.
If probation is revoked, the judge is required to adjudicate the probationer guilty of the underlying offense and impose any sentence that could have been imposed when the probationer was originally placed on probation or community control.
If the probationer does not score prison under Florida’s Criminal Punishment Code, the court may consider imposing a new term of probation or community control (without credit for supervision previously served). However, in many cases the judge will instead sentence the probationer to a straight term of incarceration.
Importantly, if the probationer is found to be a danger to the community or qualifies as a Violent Felony Offender of Special Concern, Florida law allows a judge to impose an incarcerative sentence up to the maximum penalty available for the underlying criminal charge.
Modify Probation
Modification of probation is the most common outcome for first-time technical probation violations or violations involving an underlying non-violent offense.
If probation is modified, the court may change the terms and conditions of supervision by adding new conditions or extending the probationary period.
Continue/Reinstate Probation
Continuation or reinstatement of probation is the least frequently used method of resolving probation violations.
In rare cases where a judge finds that a person violated probation but decides not to revoke or modify the probationary term, the judge may admonish the probationer and simply reinstate probation with a warning against future violations.
Nevertheless, there are legal defenses to probation violations, and the attorneys at Mowrey Law Firm are equipped to provide the representation you need.
Violation of Probation Defenses
As a threshold matter, in order to support a finding that a probationer violated probation, the prosecutor must prove by a greater weight of the evidence that the alleged violation was both willful and substantial.
To meet this burden, the State must present competent evidence sufficient to support a finding of guilt. If the State fails to meet these standards, a trial court may not revoke probation.
In addition to this general requirement, defenses to violation of probation allegations include the following:
Civil Traffic Infraction
Probation may not be revoked based on a non-criminal traffic violation unless there is a special condition of probation prohibiting a person from driving.
Constructive Possession
A common basis for alleging a probation violation is possession of contraband such as drugs or weapons.
However, if the contraband is not found on a person or in the person’s exclusive possession, the State must prove that the probationer had knowledge of the presence of the contraband and the ability to exercise dominion and control over it.
Without independent evidence proving both elements of constructive possession, a judge must dismiss a probation violation based solely on constructive possession.
Curfew Compliance
Probation officers often conduct late-night curfew checks at a probationer’s residence. If the probationer does not answer the door, the officer may file a violation of probation.
However, evidence that no one answered the door after a knock is legally insufficient to prove a curfew violation without additional evidence showing the probationer was not at home sleeping.
Inability to Pay
Before a probationer can be violated for failing to pay financial obligations, the court must determine whether the probationer had the ability to pay and willfully failed to do so.
If the State does not prove that the probationer had the ability to pay, the violation of probation must be dismissed.
Medical Emergency
A violation of probation will not be upheld when factors beyond the probationer’s control, such as a medical emergency, rather than a deliberate act of misconduct, result in noncompliance with probation conditions.
Unaware of Special Condition
When a person is placed on probation, they are presumed to have knowledge of any standard statutory conditions of probation.
However, it is a defense to a probation violation allegation if the probationer was never informed of or instructed about a special condition of probation at sentencing by the judge or later by the probation officer.
Unilaterally Imposed Conditions
Probation may only be revoked for violating a condition imposed by the judge, not one created solely by a probation officer.
Therefore, a violation of probation may be dismissed if it is based on a probation officer’s unilateral imposition of a condition that:
- Is not statutorily authorized
- Was not specifically ordered by the court
- Is more onerous than the standard or special conditions originally imposed by the court
Contact a Florida Probation Violation Defense Attorney Today
If you are accused of violating felony or misdemeanor probation, contact Mowrey Law Firm at (904) 824-7799 for a free, confidential consultation with an experienced Florida Criminal Defense Attorney. We’re available 24/7.
At Mowrey Law, we serve people when and where it matters most.