When a defendant is sentenced to Probation in Florida they are basically being granted a chance to stay out of jail or prison assuming that they adhere to the conditions of Probation. The defendant, by accepting the terms of Probation, is basically signing a contract with the court stating that they can manage themselves without having to be “rehabilitated” in jail or prison. The consequences of violating Probation can be very serious, especially in Florida. In fact, it is my opinion that Probation can sometimes be a set-up for certain types of Probationers.
Violation of probation can happen very easily, and can occur if your probation officer has any reasonable grounds to believe you violated the terms of your probation in any material way (Florida Statutes § 948.06). If there is suspicion you violated your probation, any law enforcement officer may then arrest you, or the judge can issue a warrant for your arrest.
Community Control as defined in Florida Statutes § 948.001, is supervised custody in the community, home or another place that has specific rules and requirements. For example, licensed halfway houses are considered community control. Community control is daily supervision and surveillance by law enforcement officers, including weekends and holidays.
Community control is stricter than probation, and is available to offenders who commit certain crimes that would not otherwise be available for probation. For example, those who commit serious felonies or felony offenders who have a criminal background may be eligible for community control, but would not be eligible for probation. However, violating terms of community control can result in the same penalties as probation violations.
When one is accused of violating Probation (VOP), they are in a strange predicament because they were already sentenced for the original crime. The Probationer has less legal protection then if they were being charged with a new crime. Under Florida Statute §948.06, there is no right to a jury trial in a VOP hearing, which means that the Probationer is basically at the mercy of the Judge. There is no right to bond while awaiting a hearing for a VOP. This means that a person accused of murder may be able to bond out of jail, while someone who was on Probation and violates (with a dirty urine, for example) will have to sit in jail until the VOP hearing. There is also no Statute of Limitations on a VOP, which means that the Probationer cannot just stall or wait for things to “blow over.” Also, hearsay is admissible against you in a VOP hearing, which means that whatever a Probation or Police Officer says you did can be admitted without any further proof. Also, under §948.06, guilt does not have to be proven
beyond a reasonable doubt. Basically that means that if you were over 50% more likely to have violated your probation in the opinion of the Judge, you may be charged. My advice to someone on Probation who may have relapsed on alcohol or drugs is to seek the advice of a professional before giving a confession to your Probation Officer. Similar to the police, anything you say to your Probation Officer can and will be used against you in a court of law. This is especially so in the case of a VOP, where hearsay is admissible and the burden of proof is so low. Not withstanding advice from friends in the fellowships to “be honest in all your affairs,” this is one of those cases where you want to proceed with caution.
How can Probation be violated and what are the consequences?
Some of the ways in which individuals tend to violate probation can include, but are not limited to:
• Positive Drug or Alcohol tests;
• Failure to attend required treatment programs, courses or 12-step meetings;
• Failure to pay the fines and fees required as part of your probation terms;
• Not reporting to your probation officer on the correct date and/or time;
• Failing to report if you have changed addresses during the probationary period;
• Leaving the city, county, or state, without obtaining permission from the courts or probation officer;
• Contacting someone who has an order of protection against you; or • Possession of firearms.
In Florida, a Judge can make one of three decisions if you violate your Probation. They can either:
1. Reinstate your Probation
2. Modify your Probation
3. Revoke your Probation.
The best case scenario of course is to have Probation reinstated. If Probation is modified, this will usually mean an extension of time on Probation and perhaps additional requirements, such as community service hours, additional fines, or completion of a Drug Treatment program.
A good attorney can be successful in persuading the court to reinstate probation or modify it with completion of a drug treatment program, oftentimes, being one of the terms. Through my work in the addiction field over the last decade, I have forged relationships with many of the treatment providers in the community as well as department of corrections officials. This scenario, however, has been effective mostly for drug offenders who have violated probation with either dirty urine or other substance abuse related violations. The worst case scenario is that the Judge can revoke Probation and sentence the defendant to the maximum penalty for the original charge. This is scary because someone who is on probation for a felony drug possession charge can technically be sentenced to five years in prison for dirty urine. The way some judges see it, the defendant has already been given a break by getting probation.
Even with all the issues that arise for violating probation in Florida, you do have options that may put you in a more favorable position. A good advocate will know how to employ strategies to give you the best chance at succeeding. In some cases, your attorney can argue the merits of the violation itself in an attempt to get the violation dismissed, or at least get probation reinstated. However, a plan of action must be developed and proposed to the Court.
When it comes down to it, a probation violation is not something to be taken lightly. You need an experienced and qualified attorney to intervene on your behalf.
Myles B. Schlam brings a unique array of experience and expertise
to Schlam Law, P.A. as both an Attorney and an Addiction
Professional. This unique blend of expertise is invaluable to
achieving the most effective courtroom advocacy. Myles is
committed to getting the best possible outcome for his clients.
He also represents families who are trying to get treatment for
their loved ones under the Marchman Act. He has over 10 years’
experience working with substance abuse clients, both in private
and publicly run facilities. www.schlamlaw.com