If you or a loved one is facing prosecution for a probation violation charge, it is critical to consult with an experienced Miami probation violation attorney as soon as possible to ensure that your rights are protected. You need the counsel of a probation violation attorney in Miami-Dade County who is experienced in probation violations to guide you through the process and maximize your chances of resolving your case with a favorable outcome.
Probation Violations & Community Control Violations
Probation violations and community control violations are particularly serious offenses for several important reasons. First, when a probation officer alleges a violation of probation, the only relevant issue is whether the person violated a general or special condition imposed by the judge at sentencing. It is no longer important whether the person committed the underlying crime, has a defense to the underlying crime, or took a plea out of convenience.
Florida Statutes, Chapter 948, addresses all aspects of probation, including violations (The information on this page relates to violations of probation in state court only and does not apply to alleged violations in federal crimes).
Types of Probation Violations: Substantive or Technical?
A community control or probation violation can begin in a number of different ways. According to Florida law, a probation officer—or any police officer who is aware that a person is on probation or community control—can arrest the person without a warrant if they have reasonable grounds to believe the person violated his or her supervision in a material respect. This is usually known as a “substantive violation.”
A substantive probation violation occurs when someone is arrested for committing a new crime. Even if no charges are brought, the court may still find you guilty of violating your probation. Unlike a prosecution for the new crime, however, where the prosecutor must prove the case beyond a reasonable doubt, a judge only has to find that you committed it by a preponderance of the evidence. People who repeatedly commit crimes are viewed less favorably by the courts, so substantive violations are considered more serious.
“Technical violations” of probation (an alleged violation of supervision that isn’t based on a new criminal case) usually begin with the probation officer filing an affidavit with the court containing the alleged violation. Some common technical violations are failure to complete community service hours, failure to make restitution payments, failure to attend court-ordered classes or programs, testing positive for drugs, and violating a curfew. The judge then decides whether to issue an arrest warrant for the person or orders them to appear before the court to answer to the alleged violation.
Is There a Right to Bail in Probation and Community Control Violations?
Unlike the situation when a person is arrested in a new case for criminal charges, the question of whether a defendant may be granted bail while a violation proceeding is pending is at the discretion of the court. This is not an issue when the person admits to the violation. Then, the judge can immediately enter an order revoking, modifying, or continuing the probationary period. But if the person does not admit to the violation, then it is generally up to the court whether to take the person into custody or release them with or without bail until the next hearing. But it is important to know that there are exceptions. In cases involving sexual offenders, for example, the judge is required to conduct a hearing and make a finding that the defendant’s release would not pose a danger to the public before releasing them. Also, Florida law prevents a person designated a “violent felony offender of special concern” from being released while their violation is pending.
What is the Burden of Proof in a Probation Violation Hearing?
Another distinguishing factor of a probation violation is that the judge is the trier of fact—not a jury of one’s peers. Additionally, the prosecutor only has to prove that somebody violated by a preponderance of the evidence. The court can revoke probation or community control if it finds that the greater weight of the evidence reveals a willful and substantial violation of one or more probation requirements or conditions. This is in contrast to the higher standard of proof beyond a reasonable doubt used in criminal cases. Also, unlike a trial in a criminal case, hearsay evidence is admissible in a violation hearing (although it can’t provide the only basis for the revocation). To put it bluntly, if you’re charged with a violation, the cards are stacked against you. That’s why it’s so important to retain an experienced and knowledgeable Miami probation violations lawyer.
What is the Punishment for Violation of Probation?
Often times, a judge will place a person with little or no prior criminal record on probation or community control instead of sentencing them to jail or prison. Most of the time, this person will receive what is called a “withhold of adjudication.” What this means basically is that the person has not received a felony conviction. If the defendant successfully completes the probationary term, they will not become a convicted felon and usually not have to serve any time. But if the court finds that a person either failed to comply with the conditions of probation or community control or otherwise violated them, the judge can revoke the defendant’s probation, convict them, and sentence them to jail or prison.
WE HAVE SUCCESSFULLY DEFENDED HUNDREDS OF VIOLATIONS
Additionally, the person is facing the same punishment he or she could have received originally when they were accused of the crime. For example, if someone pled no contest to a third-degree felony like grand theft and is charged with a violation of probation, they would face up to five years in state prison. If someone were sentenced to probation originally on a first-degree misdemeanor case like petit theft or domestic violence, for example, they would face up to a year in jail.