For most people, probation is an attractive alternative to jail or prison, which is why so many plea deals hinge on the defendant accepting probation in lieu of incarceration. But what happens when you violate the rules of probation? Do you have to serve out the rest of your sentence behind bars? The answer usually depends on a number of factors, including the nature of the violation, the remaining time left on the probationary term, and the original charge.
A dedicated VOP lawyer near you can provide you with invaluable advice about the rules of probation in Florida and help keep you out of jail or prison.
Terms of Probation in Florida
Florida Statute 948.03 lists the standard conditions of probation. The particular terms of your probation may vary, but this is a list of the standard rules of probation as outlined in the statute. The probationer:
- must report to the probation officer as outlined by the court.
- must be employed or seek active employment.
- must allow the probation officers to visit their home, work, or any other locations listed in the court's guidelines.
- cannot incur any new criminal offenses.
- is required to make restitution to anyone who is determined by the courts to be a victim of the crime that the probationer is accused of.
- has to support their legal dependents.
- cannot associate with criminals or anyone involved in criminal activity.
- must submit to random alcohol and/or drug testing.
- cannot own or possess a gun or other weapon without authorization.
- must pay for costs associated with probation.
- must not possess non-prescription or illicit drugs.
- cannot leave a geographic area without permission.
It's not difficult for some people to work within the rules of probation, but for others, it can be challenging. And some situations may be beyond the probationer's control. For instance, what happens if the probationer loses their job and can't readily find work? Will they be violated if they don't find a job within a specified period of time? Or what will occur if they find out that their roommate is a convicted felon or engaged in criminal activity unbeknownst to the probationer?
Consequences for Violating Probation
If you violate probation, you may be referred by your probation officer for a violation of probation (VOP) hearing. This is not a new trial. The state, not the court, brings the allegation, and it does not have to prove the violation beyond a reasonable doubt. The judge can determine whether or not you should have to serve out the remainder of your sentence, have additional restrictions placed on you, or not take any action. If your violation involves a new crime, the court may decide to place you into custody as your new charges work their way through the criminal justice system. If a hearing is held, the Judge would determine if you willfully and substantially violated your probation and if it was proven by a greater weight of the evidence. This is a lower standard than at a normal criminal trial. It is lower than beyond a reasonable doubt.
Technical Violations of Probation
Substantive violations of probation occur when the probationer is caught committing a new crime while on probation. Technical violations are violations of the probationary terms. For instance, if you travel out of state without permission, it's not a crime, but it is a violation of probation. The term “technical” does not necessarily mean “minor,” and you may have your probation violated for a technical violation.
When Are Probation Violations Least Likely to Lead to Jail Time?
Florida law requires the court to keep you on probation, rather than revoke it, in one defined situation. Under Florida Statute 948.06(2)(f), the court must modify or continue the probationary term if all of four things are true: you are on probation rather than community control, you are not a violent felony offender of special concern, the violation is a low-risk technical violation listed in Florida Statute 948.06(9)(b), and the court has not already found you in violation during this term of supervision. In that situation the court may add no more than 90 days in county jail as a condition of probation. The low-risk list in 948.06(9)(b) includes a positive drug or alcohol test, failing to report to the probation office, missing a required class or treatment session, a curfew violation and leaving the county without permission. Outside that rule the judge has discretion, and most judges treat new criminal activity as a significant violation of trust. On the other hand, a judge may not deem a failed alcohol or cannabis test a major violation, particularly if your crime didn't involve drinking or narcotics. If you have repeat violations, it may not matter to a judge whether or not the offenses were minor. The courts have a great deal of discretion when determining penalties, which is why you should hire a Florida criminal defense lawyer to present your case to the court.
Other Questions About Probation in Florida
If you are on probation or are facing a violation of probation hearing, you should contact a criminal defense lawyer immediately. In Florida, Weinstein Legal Team can represent you at your VOP hearing.
Is There a Difference Between Federal and State Probation?
Yes. Federal probation is supervised by the U.S. Probation and Pretrial Services Office for the federal district you live in, and Florida has three: the Northern, Middle and Southern Districts of Florida. The Florida Department of Corrections Probation Office supervises probationers for state felonies.
Does It Matter if You're on Misdemeanor or Felony Probation?
It can. The Florida Department of Corrections monitors felony probationers, and other agencies may supervise misdemeanor probationers, depending on the county of arrest. For instance, Broward Sheriff's Office monitors misdemeanor probationers.
What if I'm Arrested on a New Crime While on Probation?
You're entitled to a trial for that crime, and you are considered innocent until proven guilty. Because a violation of probation does not require the same level of proof, however, your new charge may violate your probation. This could lead to incarceration for your original crime.
What if My Probation Officer is Abusive or Unfair?
Probation officers have a tremendous amount of power over the lives of their charges. Unfortunately, a small percentage of them abuse that power. If you have an unfair or abusive probation officer, contact Weinstein Legal Team or a probation violation attorney near you.
Criminal Defense Lawyer in Palm Beach and Broward
Violating probation can lead to your immediate arrest and incarceration. Don't take chances with your freedom. If you are facing a VOP hearing, contact Weinstein Legal Team to discuss your violation. Attorney Matt Shafran defends clients in Florida criminal prosecutions and at violation of probation hearings. Call today.
