Criminal Defense Article
Violation of Probation
by J. David Gentle
A family hired me to represent their son who was arrested for a violation of probation. After meeting with him at the jail, I was surprised to learn that he didn’t understand probation at all, and how serious of a situation he was in. I have since discovered that a lot of people don’t understand probation and its place in the Florida criminal justice system.
Criminal probation is an alternative to imprisonment. It’s when a judge allows a person found guilty of a crime to serve some or their entire sentence at liberty. Probation is generally understood as a “kinder and gentler” option to jail or prison. Its goal is to supervise and help the probationer from committing crimes and to rehabilitate them into a law-abiding citizen.
A person on probation is usually required to report to his probation officer regularly, to show good behavior, and to live by any special conditions imposed by the court. This could include community service, counseling, classes, paying fines, court costs etc. These conditions must be specifically told to the probationer and can be found on the paperwork given to you by the court that orders you to probation.
If a probationer fails to follow these conditions, they can be charged with a probation violation and brought back before the court. Probation violations are particularly serious offenses. When someone is charged with a violating their probation, the only relevant issue is whether or not the person violated a condition imposed by the judge at sentencing. It is no longer important whether or not the person committed the underlying crime, has a defense to the underlying crime, or took a plea out of convenience. If the state can prove that the terms of probation were violated, then the probation can be revoked, and what began as conditional liberty can become a term of incarceration. In Florida, the judge can impose a new sentence up to the maximum allowed by law for the offense, regardless of how lenient the sentence was originally. If you were granted a withhold of adjudication for a first-time conviction of a crime, you can now be adjudicated guilty. This changes your status to that of a convicted felon, and your rights of citizenship.
A probationer faced with violation of probation is entitled to a hearing, but is not entitled to a jury trial. Every defendant can ask the Court to allow them to post a bond during the time between their arrest and their Violation of Probation Hearing. There is no right to a bond for a violation of probation however. At that hearing, the same rules of trials generally do not apply; hearsay evidence may be admitted; rules against self-incrimination are not absolute, and the standard of proof different. The standard of proof is preponderance of the evidence rather than beyond a reasonable doubt. Preponderance of evidence means that greater weight of evidence that is more credible and convincing favors one side rather than the other. In other words, preponderance of the evidence is slightly more than half.
A violation which triggers a revocation of probation must be found to be both willful and substantial. The willful and substantial nature of the violation must be supported by the greater weight of the evidence. In Florida, there is not much difference between a first violation of probation or a second one. You can violate general conditions of probation or special conditions of probation also known as a technical violation. You can violate by being accused of committing a new crime.
My young client didn’t understand the seriousness of being placed on
probation, and the consequences of not living up to it. Unfortunately, he had
to learn the lesson while going through the process. Probation and a violation
of probation can have a large impact on you and your loved ones lives and can
become quite a complicated legal matter. Like any serious matter, if you have
any issues with probations, don’t handle it alone. Always consult your
attorney, or find an attorney with the experience to handle your case.
Written by J. David Gentle, Esquire of the Law Firm Longwell & Gentle P.A..
For more information, please contact our law office at 407-426-5757.