As outlined in Florida Statutes Chapter 498, probation is defined as a form of community supervision that imposes certain terms and conditions on an offender in lieu of incarceration.
Although it serves as an alternative to incarceration, a probationary sentence should not be taken lightly. Violating a condition of your probation can have serious consequences and may even result in the revocation of your probation altogether. If you have been accused of a probation violation, it is imperative to reach out to an experienced Violation of Probation lawyer immediately!
What Constitutes a Violation of Probation (VOP)?
Under Florida law, a violation of probation occurs when a defendant willfully and substantially fails to comply with the terms and conditions of his or her probationary sentence. Whether a violation was both willful and substantial in nature depends on the facts of each individual case and must be proven by state by the “greater weight of the evidence.” State v. Melton, 65 So. 3d 96, 97 (Fla. 1st DCA 2011); Thompson v. State, 890 So. 2d 382, 383 (Fla. 2d DCA 2004).
For examples of non-willful violations, please see below:
Thorpe v. State, 642 So. 2d 629 (Fla. 1st DCA 1994) (stating that where a probationer has made reasonable efforts to comply with the terms of their probation, a violation cannot be deemed “willful.”
White v. State, 619 So. 2d 429, 431 (Fla. 1st DCA), review denied, 626 So.2d 208 (Fla.1993) (no willful violation of probation where a probationer, who failed to perform community service, had reported to the community service work site “many times” but was told that work was not available
Rainer v. State, 657 So. 2d 1230, 1230 (Fla. 4th DCA 1995) (failure to complete drug rehabilitation program not shown to be willful where uncontradicted testimony indicated that a mental illness interfered with the defendant’s ability to follow instructions
Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980) (no willful violation of condition requiring personal delivery of a report when timely completed report was not delivered because of probationer’s lack of transportation and subsequent incarceration for an unrelated offense);
In Florida, there are two types of probation violations: technical violations and substantive violations.
A technical violation occurs when an individual violates either a specific or general condition of their probation. These typically include things like:
Failure to pay court costs and fines
Failure to complete court-ordered programs such as drug rehabilitation or mental-health counseling
Failing a drug test
Missing or arriving late to probation-related appointments
Failure to Pay Court Costs and Fines
When a probation violation involves a failure to pay certain financial obligations (court costs, fines, restitution, etc.), a court usually takes into consideration the willfulness and ability of the defendant to pay. Unlike with other technical violations where the state usually has the burden in proving that the violation was both willful and substantial, in these situations, the defendant has the burden of proving, by clear and convincing evidence, that he is unable to pay.
If a trial court determines that the defendant has the ability to pay, but has willfully refused to do so, he/she is in violation of his/her probation. Stephens v. State, 630 So. 2d 1090, 1091 (Fla. 1994).
Failure to Complete Court-Ordered Drug/Alcohol/Mental-Health Programs
If it can be established that a defendant was – in one way or another – responsible for failing to complete his or her court-ordered substance abuse program, a probation violation has occurred and probation may be revoked or modified accordingly. Curry v. State, 379 So. 2d 140, 141 (Fla. 4th DCA 1980).
However, if the state fails to prescribe a specific period of time for entrance into or completion of the court-ordered program, a defendant’s failure to enter and complete such program cannot serve as the basis for revocation. Wilkerson v. State, 884 So. 2d 153 (Fla. 2d DCA 2004).
Failed Drug Test
In these situations, the burden is back on the state to prove that an illegal drug was present in the defendant’s body. However, there are limitations as to how a state can prove this. For example, positive drug test results must be authenticated and cannot be authenticated by just anyone. Rather, such results must be established by an individual with experience and training in establishing the identity and presence of the contraband. Weaver v. State, 543 So. 2d 443, 444 (Fla. 3d DCA 1989).
This often means that testimony of a probation officer establishing a positive drug result will not suffice. Bray v. State, 75 So. 3d 749 (Fla. 1st DCA 2011) (reversing a revocation of probation where the finding of violation was based on hearsay testimony of two probation officers regarding positive lab results obtained from a defendant’s urine sample. Although both officers testified that they had conducted hundreds of urinalyses, neither testified as to any expertise as to narcotics or drug testing).
However, if the probation officer is certified by the State of Florida to administer a drug test, a trial may revoke probation based solely on the testimony of this officer. Terry v. State, 777 So. 2d 1093 (Fla. 5th DCA 2001) (affirming a revocation of probation where the officer was not only certified by the State to administer the test, but also testified as to the nature of the field test, how it was performed, and his frequent administrations of said test).
Again, willfully missing or disregarding an appointment with your probation officer is likely to result in arrest. However, if it is a single instance and you are able to offer a valid explanation as to why you missed the appointment, it is unlikely that a court will view this as willful and substantial noncompliance. Washington v. State, 667 So. 2d 255 (Fla. 1st DCA 1995) (single missed counseling session); Bingham v. State, 655 So. 2d 1186 (Fla. 1st DCA 1995) (a single missed meeting of sex offender group counseling).
A substantive violation, on the other hand, occurs when an individual commits a new crime during their probationary sentence.
When the state seeks to revoke probation based on the commission of a new offense, they must provide direct, non-hearsay evidence linking the defendant to the commission of the new offense. Johnson v. State, 962 So.2d 394, 396-97 (Fla. 2d DCA 2007). This means that the State must provide more than just hearsay testimony from the police officer repeating statements from a victim of the newly committed crime. By itself, this hearsay testimony is legally insufficient to support a revocation of probation. Johnson, 962 So. 2d at 398.
It is important to remember that in each of these scenarios the alleged noncompliance must be willful and substantial in order to qualify as a legitimate violation of probation. Although this is determined on a case by case basis, any evidence that goes to show that the noncompliance was due to outside, uncontrollable forces can aide in the determination of your case.
What Will Happen if I have Violated Probation?
If you happen to violate any of the imposed conditions of your probation, it is likely that your supervising officer will initiate a procedure for your arrest. With misdemeanor or other low-level offenses, your probation officer fills out what is called an Affidavit of Violation and in felony cases, a Department of Corrections Violation Report. Both serve as a sworn statement outlining why the officer reasonably believes you have committed the violation in question.
Once an arrest warrant is issued and you are taken into custody, a hearing will be scheduled to review your case. While awaiting your hearing, it is likely that you will be placed on a “no bond” status which requires you to remain in jail until bond is requested on your behalf.
It is important to note that a VOP hearing is substantially different from a regular hearing. First and foremost, the evidentiary standard for the State in a VOP hearing is substantially lower than the “beyond a reasonable doubt” standard applied typical jury-trials. This means that it is easier for the state to prove its case in a violation of probation proceeding.
You may also be forced to testify against yourself. E.P. v. State, 901 So. 2d 193, 195 (Fla. 4th DCA 2005); Perry v. State, 778 So. 2d 1072, 1073 (Fla. 5th DCA 2001) (finding that an acceptance of the terms of probation subsequently waives any right against self-incrimination when dealing with probation-related matters). Additionally, as mentioned above, you are not always entitled to pre-trial release (bond) while awaiting a VOP hearing. Bell v. State, 179 So. 3d 349, 351 (Fla. 5th DCA 2015); Peraza v. Bradshaw, 966 So. 2d 504 (Fla. 4th DCA 2007).
Why is this important? It is important to understand that your rights in a VOP hearing are substantially limited as compared to those afforded to you during a typical criminal proceeding. In order to ensure that the rights you do have during a VOP proceeding – including the right to representation – are not disregarded or diminished in any way, it is imperative that you contact an experienced probation violation lawyer to help guide you in your case.
What Are the Penalties for Violating Probation?
If a judge finds that the you did in fact commit the violation, they have three options. According to section 948.06, Florida Statutes (2018), a judge may:
Reinstate your Probation;
Modify your Probation Sentence; or
Revoke the Probation and Impose jail/prison time.
If your probation is revoked, the judge has the legal authority to impose the maximum sentence for the charge that you were originally placed on probation for. State v. Segarra, 388 So. 2d 1017, 1018 (Fla. 1980) (adopting the reasoning in Johnson v. State, 378 So.2d 335 (Fla. 2d DCA 1980). This is so even if the new sentence is longer than the term included in the original plea bargain, so long as the longer sentence does not exceed the statutory maximum. Id.
For example, say you are on probation for burglary of an unoccupied dwelling. Under Florida law, this is a second-degree felony that carries a maximum sentence of 15 years in state prison. If you were to violate your probation for this charge, a judge could sentence you to those 15 years. Again, this is the case even if the sentence agreed to in your plea bargain was 10 years.
Hiring an Attorney for Violation of Probation Charge?
Depending on the situation, you may have an applicable defense to a violation of probation charge. This is why it is important to have an experienced probation violation attorney on your side. It is your right to have an attorney represent you during your violation hearing and other related proceedings.
If you or someone you know is in need of a probation violation lawyer in the Tallahassee area, please contact our firm at (850) 681-7777 for a free consultation. Again, probation violations are a serious infraction and should be dealt with accordingly. Our experienced criminal defense attorneys are dedicated to helping people effectively address these situations and providing them with the representation they deserve.
Attorney Don Pumphrey, Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney. Don has achieved over 100 not guilty verdicts at trial and over 2,000 dismissals.