Probation is a form of community supervision requiring an offender to abide by court-ordered terms and conditions in lieu of a sentence of incarceration. A violation of probation occurs when a defendant willfully and substantially fails to comply with the terms of his or her probationary sentence.
Common Types of Probation Violations
There are a number of ways that probation may be violated. Below are some examples of common types of 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 violation of probation proceeding is much different than being charged with a new crime. Because you have already been sentenced to probation, you have less protection than if you were charged with a new crime. Some examples are:
- No statute of limitations
- No right to a speedy violation of probation 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.
- You can be forced to testify against yourself.
- 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 attorney is a must, as judges and prosecutors often push for 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
1. Revoke Probation
Revocation of probation is the most common consequence of violating probation with a new criminal offense or when violating probation for a serious or violent felony offense. 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 originally placing the probationer 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), but more likely will 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 also allows a judge to impose an incarcerative sentence up to the maximum penalty available for the underlying criminal charge.
2. Modify Probation
Modification of probation is the most common consequence for first time technical probation violators or for violating probation on an underlying non-violent offense. If probation is modified, the court can modify the terms of supervision by adding new conditions or extending the probationary period.
3. Continue/Reinstate Probation
Continuation of probation is the most infrequently used method of resolving probation violations. In those rare cases where a judge finds a person in violation of probation but decides against revoking or modifying the probationary term, the judge will admonish the probationer and simply continue (reinstate) them on probation with a warning against future violations.Nevertheless, there are defenses against probation violations and the attorney’s at Mowrey Law Firm are equipped to provide you with 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 in nature. In meeting this standard, the State must present competent evidence sufficient to support a finding of guilt. Where the State fails to meet these standards, a trial court may not revoke probation.
In addition to this general standard, defenses to violation of probation allegations include:
Civil Traffic Infraction
Probation may not be revoked based on a non-criminal traffic violation absent a special condition of probation preventing a person from driving.
Constructive Possession
A frequent basis to violate a probationer’s probation is to allege that they were in 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 the same. Absent independent evidence supporting both elements of constructive possession, a judge is required to dismiss a violation of probation based solely on the constructive possession of contraband.
Curfew Compliance
Frequently, probation officers will show up at a probationer’s home in the middle of the night to conduct a curfew check and if the probationer does not answer the door, the probation officer will file a violation of probation. When faced with an allegation that a person violated a curfew imposed as a condition of probation, evidence that no one answered the door in response to a knock is legally insufficient to prove the curfew violation without other evidence showing the probationer was not at home sleeping.
Inability to Pay
Before a probationer can be violated for failure to pay financial obligations, there must be an inquiry into 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, then the violation of probation must be dismissed.
Medical Emergency
A violation of probation will not be upheld when factors beyond a probationer’s control, such as a medical emergency, rather than a deliberate act of misconduct, result in the probationer’s noncompliance with probation.
Unaware of Special Condition
When a person is placed on probation, they are presumed to have knowledge of any standard statutory conditions of probation conditions imposed. However, it is a defense to a probation violation alleging if a probationer was never informed of, or instructed on, a special condition of probation at the time of sentencing by the judge or subsequently by their probation officer.
Unilaterally Imposed Conditions
Probation may only be revoked for violation of a condition which was imposed by the judge, not by a probation officer. Consequently, a violation of probation can be dismissed if the violation is based on a probation officer’s unilateral imposition of a probation condition that is not statutorily authorized, was not specifically imposed by the court, or is more onerous than the standard or special conditions originally imposed.
Contact an Attorney
If you are accused of violating your felony or misdemeanor probation, contact an experienced criminal defense attorney at Mowrey Law Firm today.