Violation of Probation (VOP) in Florida
A violation of probation proceeding is much different than being charged with a new crime.
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; Can't wait out the VOP.
- No right to a speedy violation of probation hearing. [1]
- No constitutional right to request a bond while awaiting a VOP hearing. [2]
- No possibility of bond under Florida’s Anti-Murder Act.
- No right to a jury trial in a VOP hearing.
- Hearsay is admissible in a VOP hearing. [3]
- 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.
Nevertheless, there are defenses to probation violations and we have successfully defended hundreds of clients accused of violating their probation.
Probation Violations
After you are placed on probation, you are advised of the conditions of your probation by the judge and your probation officer. Should you disobey the conditions and violate your probation, you run the risk of having you probation violated.
There are two types of probation violations you can commit:
Technical Violations of Probation
A technical violation is any violation of either your general or special conditions of probation.
Examples of technical violations include:
- A positive drug or alcohol test result.
- Failure to report to the probation office.
- Failure to report a change in address or other required information.
- Failure to attend a required class, treatment or counseling session, or meeting
- Failure to submit to a drug or alcohol test.
- A violation of curfew.
- Failure to meet a monthly quota on any required probation condition, including, but not limited to, making restitution payments, paying court costs, or completing community service hours.
- Leaving the county without permission.
- Failure to report a change in employment.
- Associating with a person engaged in criminal activity.
Substantive Violations of Probation
Substantive violations of probation occur when you commit a new criminal offense.
Importantly, an acquittal in a criminal case does not preclude the judge from determining that a probation violation occurred based on the same conduct. [3] Meaning, a prosecutor can still try to “prove-up” the offense at a subsequent VOP hearing. And, unlike in a criminal trial, the burden of proof is only a “preponderance of the evidence” and there is no right to a jury.
Violation of Probation Penalties
If a probationer admits to violating probation or a judge finds a probationer in violation of probation after conducting a hearing, a judge is required to take one of three actions:
The only exception is if the probationer commits a first time low risk violation of probation and qualifies for a mandatory modification or continuation of probation, in which case the court can only modify or continue probation.
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.
Example
A probationer is placed on two years of probation for Felony Battery and violates probation by not completing an Anger Management Course. A judge could legally sentence the probationer up to five years in prison on the technical probation violation even if all other terms of probation were completed.
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 extend the probationary period.
First Time Low Risk Violation of Probation
If a probationer commits a low-risk technical violation of probation and has not previously been found in violation of probation and does not qualify as a Violent Felony Offender of Special Concern, the court must modify or continue probation. [4]
If the court elects to modify probation under this requirement, the court can impose up to 90 days in jail as a special condition of the modified probation.
Continue 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.
Violation of Probation Defenses
As a threshold matter, in order to support a finding that a probationer violated probation, the prosecutor must prove the alleged violation was both willful and substantial.
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. [5]
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. [6]
Curfew Compliance
Very 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 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. [7]
Inability to Pay
Before a probationer can be violated for failure to pay a 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 the probationer had the ability to pay, then the violation of probation must be dismissed. [8]
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. [9]
Negligence or Ineptitude
A probationer's good faith and reasonable attempts to follow probation instructions will not support a willful violation of probation if the alleged violation is the result of negligence or ineptitude. [10]
However, a violation will be upheld if the careless or negligent conduct that led to the violation rises to the level of deliberateness or willful blindness.
Sufficient Time Remaining
Absent a judge imposing a beginning and ending date for completing a special condition, it is a defense to a probation violation that there is sufficient time remaining to complete the required special condition. [11]
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. [12]
Unilaterally Imposed Conditions
Probation may only be revoked for violation of a condition which was imposed by the judge, not by a probation officer. [13] 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 Violation of Probation Attorney Richard Hornsby
If you have been arrested or charged with Violation of Probation in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer Richard Hornsby today.
The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.
References
- Smyly v. State, 952 So. 2d 1261 Fla. 4th DCA 2007)
- Peraza v. Bradshaw, 966 So. 2d 504 (Fla. 4th DCA 2007)
- Morris v. State, 727 So. 2d 975, 977 (Fla. 5th DCA 1999)
- Florida Statute 948.06(2)(f)
- Anglin-Phillips v. State, 154 So.3d 500 (Fla. 4th DCA 2015)
- Martoral v. State, 946 So. 2d 1240 (Fla. 4th DCA 2007)
- Brown v. State, 280 So. 3d 1117 (Fla. 2d DCA 2019)
- Sankey v. State, 194 So. 3d 549 (Fla. 2d DCA 2016)
- Marchan v. State, 192 So. 3d 658 (Fla. 2d DCA 2016)
- Garcia v. State, 701 So. 2d 607 (Fla. 2d DCA 1997)
- Miller v. State, 189 So. 3d 947 (Fla. 2d DCA 2016)
- Orr v. State, 453 So. 2d 222 (Fla. 5th DCA 1984)
- Williamson v. State, 43 So. 3d 843 (Fla. 1st DCA 2010)