Violation of Probation
The sentencing phase of a criminal case occurs after a person is convicted of a misdemeanor or felony. The conviction means that the party charged with a crime, the defendant, has been found guilty by a jury or after entering a plea.
After a person is convicted of a criminal offense, a judge may, when the law allows, have that person ordered to a term of probation or community control. This can be instead of or in conjunction with jail time and fines, as an alternative to a longer term of straight imprisonment. In Florida, “probation” is defined under Florida Statute 948 as a form of community supervision requiring contact with parole and probation officers, as well as other terms. Probation is considered a privilege, not a right. This privilege carries with it a number of conditions and responsibilities.
In Florida, if you are on probation, you are referred to as an “offender.” As an “offender” on probation, you will be required to adhere to a number of conditions to successfully stay on and complete the probationary period. You may be required to do community service, attend classes, go to counseling, remain gainfully employed, stay in school, stay away from drugs, avoid committing new criminal offenses, and be on time to appointments with the probation officer assigned to oversee your progress. The Florida Office of Community Corrections currently supervises more than 166,000 adult offenders throughout Florida. These offenders are monitored and supervised by probation officers located in 130 probation offices.
Violation of Probation
If you violate a condition of probation—or, in other words, if you fail to do something the Court required—or if you do something you were told not to, the violation can result in your probation officer reporting your non-compliance. The officer may then seek a warrant for your arrest for the violation. In Lee County or Charlotte County, you can be held in jail with no bond pending resolution of the violation.
Florida law provides for two types of probation violations. One type is called a “technical violation,” and the other type is called a “substantive violation.”
Technical Violations include:
- Failure to report to your probation officer in a timely manner
- Failure to pay fines and fees
- Failure to pay restitution (payment to victims for any losses)
- Failure to attend required counseling (anger management or substance abuse)
- Use of drugs and alcohol
- Failure to complete community service
- Associating with people you should not associate with
- Violating travel restrictions
- Violating curfew conditions
- Violating rules relating to wearing or maintaining a GPS monitor
Substantive Violations include:
- Conviction of a new crime
- Commission of a new offense
Regardless of whether a violation is technical or substantive, the violation must be subjected to a legal test that asks whether the violation was “willful and substantial.” A violation must be willful and substantial for the person charged with the violation to be found guilty. This test will be applied at your Violation of Probation Hearing, which will take place at some point after your arrest for the violation.
At a violation of probation hearing, the Court has broad discretion to determine whether the violation of probation was a willful and substantial violation of a term of probation and whether the violation was demonstrated by the greater weight of the evidence. This test is decided on a case by case basis.
You will need a good attorney with experience to effectively argue in your favor. Your violation cannot be considered willful if you made reasonable efforts to comply with the conditions. Can it be shown that you had no control over the situation that resulted in the violation? Can it be shown that the violation was too minor or immaterial to call for your probation to be revoked? In short, a good lawyer may be able to convince a prosecutor in negotiations or a judge at a hearing that that your violation was unintentional, that you put a reasonable effort toward complying with the probation, or that the violation was unimportant.
The result of a violation of probation in Lee County or Charlotte County, Florida can be reinstatement to probation, modification of probation with additional conditions, or revocation of probation and a sentence to jail or prison.
Failure to meet your conditions of probation could mean going to jail or prison to serve out the original sentence. If you have been accused of a probation violation, you need to retain the services of a criminal defense attorney who is experienced in defending probation violation charges in order to protect your freedom.
If you are in Fort Myers, Estero, Cape Coral, Lehigh Acres, Punta Gorda, Northport, or any location in between and you need an experienced and affordable lawyer for a violation of probation, contact Robert Foley for a free consultation.