Florida Probation Violations Laws, Defenses and Lawyers
Community supervision is not a right in Florida; it is a privilege. Many people do not understand that. They believe it is the other way around. A judge has the discretion to incarcerate a person who pleads guilty or is found guilty after trial, irrespective of the person’s prior criminal history. Notwithstanding that discretion, judges will often exercise their option to allow the defendant another chance and to correct the behavior that landed them in court by placing the defendant on probation with conditions to help rehabilitate the offender. Judges can add community supervision requirements to offenders even after they get out of jail to help them assimilate into the community and to rectify the problem that brought that individual before the criminal justice system.
Every year, Florida’s Department of Correction supervises approximately 150,000 people. The offenders are on probation, controlled release, conditional release, administrative control, parole (for some older offenses or parole supervision transfer cases from out of state), and work release. Florida’s correctional system supervises the offenders to make sure they comply with the court’s orders upon release from incarceration. Anyone who violates the terms of his or her community release will return to jail or prison as a probation violator.
Florida Statutes chapter 948 sets out in great detail how controlled community supervision works in the state. Chapter 948 outlines when judges can place someone on probation in lieu of incarceration, when split sentences with probation could be used, which programs offenders must complete, and other conditions like attending drug counseling and meeting with a probation officer.
Potential Consequences for Probation Violators
A judge has numerous options to sanction a probation violator. The judge could impose additional probation requirements such as extending the probationary period, adding a condition like drug testing, attending probation meetings, restrictions on travel, or restricted contact with specific individuals. Additionally, the judge could return the offender to prison for a probation violation.
What Constitutes a Probation Violation in Florida?
Probation is a period of conditional release, and the probationer must comply with all of the terms established by the court. The offender cannot pick and choose; probation terms are not a menu. Therefore, failing to attend a program, failing to pay a fine, failing a drug test or refusing to take a drug test, missing appointments, missing treatment sessions, not completing the batterer’s intervention program, and not complying with court orders to not congregate all constitute probation violations.
While all of these allegations are serious and could result in the judge revoking probation, the most severe accusation concerning a violation of probation is for committing a new offense. Every person on conditional release pledges to obey all laws while on probation. Getting arrested for an offense on probation could subject the offender to reincarceration on the probation violation and receiving a sentence on the new offense if convicted.
Probation Violation Proceedings in Florida Courts
The assigned probation officer institutes probation violation proceedings by filing in court an “Affidavit of Violation.” The probationer must receive notice of the violation proceedings so he or she could defend against the allegations. The failure of the probation officer to give formal notice of the charges for a probation violation is a violation of the Due Process Clause of the Fifth Amendment to the U.S. Constitution, as well as a violation of the Florida State Constitution. Also consistent with Constitutional protections, the probationer has the right to have an attorney represent him or her at the probation revocation hearing.
The probation officer will either issue a summons to appear in court at a specific date and time for an arraignment on the probation violation. Alternatively, the court could issue a warrant for the arrest of the probationer. When the court issues an arrest warrant for a probation violation, the probationer will not be granted a bond if arrested on the warrant. The probationer will remain in custody at the county jail on a “no bond status” until the final revocation hearing.
At the arraignment on claims of a probation violation, the court will inform the probationer of the allegations and provide the probationer with documentation supporting the government’s claims. The court will also set a final probation surrender hearing date.
At the final hearing, the government, represented by the prosecutor, must prove the allegations that the probationer violated the terms and conditions of release as outlined in the probation officer’s Affidavit of Violation. The standard of proof at the probation hearing is lower than the standard of proof required to convict someone charged with a crime. The offender has already been convicted of the crime for which he or she is on probation. Therefore, the government has to prove the probation violation only.
Proof at a Probation Violation Hearing
The government will meet its burden of proving the probationer violated the terms and conditions of probation by presenting credible evidence that the violation was both willful and substantial. The standard of proof is similar to the rule of proof used in civil court called preponderance of the evidence. According to Steiner v. State, 604 So. 2d 1265 (1992) (Fla: 4th Dist. Court of Appeals), a justice of the trial court can revoke a term of probation or community control when the government proves by the greater weight of the credible evidence presented in court that the person willfully and substantially violated a condition of probation.
Not every allegation will be proved. The government always bears the burden of proof because it sometimes fails to show the violations are substantial. Examples of cases in which the judge found no violation are: being in a room with drugs without evidence of possession, getting arrested a charge for which there was no probable cause, not returning to the state as ordered when the probationer’s car broke down, and not answering the door for a home visit from the probation officer. However, Chapter 948.06(3) gives the court broad latitude to find a violation of probation when the probation order in any material respect. Conversely, reasonable efforts to comply with probation but failing are not willful violations.
Musca Law’s Probation Violation Defense Attorneys are Ready to Defend Your Rights
Call Musca Law’s Florida probation violation defense attorneys today at (888) 484-5057 to schedule a meeting with our exceptional probation violation defense attorneys. We will fight to keep you out of jail and on probation.