Florida criminal statutes provide a range of sentencing options from which judges can choose when imposing the penalty for an offense. Among the choices are a jail or prison term, a fine, or a period of probation that requires the defendant to comply with specific conditions.
Probationary sentences are less severe than incarceration but misunderstanding your obligations or the government’s power to punish violations of probation can be disastrous. This blog post will explain how probation works, what obligations can be imposed with your probation, how alleged violations are handled, and what penalties you could face if you violate probation.
At Tampa’s Stechschulte Nell, Attorneys at Law, we take probation and alleged violations seriously. We want every client and prospective client to understand the perils built into the probation system in Florida.
The law declares that probation is a privilege and not a right. That means that the privilege can be revoked, and every defendant needs to know under what circumstances that revocation can occur, and how experienced criminal defense lawyers can protect them from an unjustified or unsupported charge of violating probation violation.
How Does Probation Work?
When a defendant appears before a Florida court and either admits the facts alleged to constitute a crime, pleads guilty or nolo contendere or is convicted by a judge or jury can be sentenced by the judge. Even when a criminal offense provides for jail or prison, the judge may impose a less-than-jail sentence if they believe it is appropriate. The judge can also impose some jail or prison time after which the defendant will be on probation for a defined period.
A sentence that includes a period of probation is a conditional release imposed as an alternative to immediate incarceration. Probation conditions always require the probationer to keep the peace and not to commit another offense. Additional standard requirements include:
- maintaining regular contact with the probation officer (PO) assigned to the case,
- notifying PO of any address change,
- permit the PO to visit your home, work, and other locations you frequent,
- continue to maintain employment or attend an educational program,
- do not leave the designated jurisdiction without PO authorization,
- attend any assigned counseling (alcohol, drug, domestic violence, mental health, etc.),
- provide samples of blood or urine for alcohol or drug testing,
- pay restitution to victims,
- do not be arrested,
- do not associate with known felons or others conducting criminal activities,
- take no drugs without a doctor’s prescription and with notice to PO,
- perform all assigned hours of community service.
By complying with every one of these requirements, a probationer could complete their probation term without violating it. At the end of the designated probation period, these obligations cease.
Violations of Probation
There are two types of probation violations: substantive violations and technical violations.
Substantive Probation Violations — A substantive probation violation involves a new offense. This includes any offense for which a separate charge is filed. The offense used as the basis for a substantive probation violation can range from minor misdemeanors to serious crimes.
If evidence or information is discovered causing the probation officer to have a “reasonable belief” that a probationer committing a new crime, the responsible probation officer will immediately file an Affidavit of Violation with the court describing the violation (i.e., the new crime). The judge will issue an arrest warrant unless the facts are such that a notice to appear will suffice. In reality, if a violation is observed, the probationer can be arrested even without a warrant.
A substantive violation proceeding is similar to a trial except there is no jury, the prosecution does not need to prove the violation beyond a reasonable doubt, and the accused violator has no right to be released pending the outcome of the hearing. A defendant does have the right to be notified of the allegations, to have an attorney represent them, to confront and cross-examine witnesses, and to testify in their defense if they choose to do so.
Burden of Proof — In a violation hearing, a prosecutor’s burden of proof is known as “a preponderance of the evidence.” In plain English, it means the judge needs to find that “it is more likely than not” that you violated probation. The new crime does not need to be proven.
For example, let’s say a probationer is in a car stopped by police after a high-speed chase. The probationer is in the back seat with another convicted felon. There is good evidence to suspect the other felon committed a robbery an hour earlier and that the car was observed leaving the scene.
Prosecutors may suspect and attempt to prove to the probationer that he/she was involved in the robbery. However. Even if the judge disbelieves the robbery allegation, they may still sustain the violation charge based on the probationer associating with a convicted felon.
Technical Probation Violations — A technical violation is one in which someone failed to comply with one of the required terms of their probation. This could be missing a scheduled meeting with the PO or failing to regularly attend counseling, or providing “dirty urine.” While still entitled to seek an arrest warrant, probation officers typically issue a notice to appear so the probationer can attend a court hearing on the issue. If a probationer continues to collect technical violations, a judge is authorized to impose any reasonable sanction or none, as they see fit.
Probation Violation Penalties
Thinking that serious punishment has been escaped because a court “only” sentenced a person to probation is a serious miscalculation. Until a probationary period is completed successfully, anyone serving probation is subject to the severest penalty provided for the offense for which they are on probation.
A person serving probation for a first-degree misdemeanor who violates probation can be sentenced to jail for up to 1 year and fined $1,000. The sentence can be imposed whether the violation occurred on the first day of probation or the last day of probation.
If a person is on probation for a second-degree felony, a violation of that probation can result in a judge imposing a 15-year prison term.
No Misunderstandings Allowed
When a defendant is ordered to serve a period of probation under the supervision of the probation department, the newly sentenced probationer must meet with a probation officer and review the “probation contract” line by line. Many are asked to initial each line to confirm that they read and understand each obligation.
Pleading ignorance is not a viable option.
Contact an Experienced Probation Violation Defense Attorney Today
Mistaking an alleged probation violation for a minor affair can lead to disastrous results, even prison time. If you are facing a probation violation hearing, don’t take it lightly, but don’t give up either. While probation violation procedures may seem too informal and too controlled by authorities to fight, experienced criminal defense lawyers know how to appeal to a judge’s discretion and how to emphasize sympathetic aspects of your case.
A skilled defense attorney’s advocacy is a valuable resource to have in your corner when you need it. Don’t wait until it’s too late. Call Stechschulte Nell, Attorneys at 813-280-1244.