Fort Lauderdale, Florida

Violation of Probation

Definition of Probation

Probation is defined by Chapter 948 of Fla. Stat. as a type of community service requiring an, "offender", person under the supervision of a probation officer, to comply with general and sometimes special requirements of supervision and conditions of probation. The State of Florida considers a probation sentence a privilege, not a right with its principal function being the rehabilitation of a defendant and the protection of society. Probation is usually viewed by prosecutors as an alternative to jail or prison time. However, most individuals who are placed on probation are not fully aware of the requirements of probation and the severe penalties if the probation is violated which often includes jail or prison time. Having an experienced Probation Violation Lawyer like Attorney Dave Simmons, from the Law Offices of Dave L. Simmons. P.A. will put you in the best position to get the most favorable result in your case.

Upon your Probation Officer finding you in Violation of Probation, the Officer will submit to the Court an Affidavit of Violation of Probation. The Affidavit is a sworn statement by the Probation Officer detailing why the Officer has a reasonable belief that the defendant committed the violation. Upon receipt of the Affidavit of Violation of Probation, the Court will review the allegation outlined in the warrant and determine whether there a reasonable basis exists to sign the warrant and issue a "Capias" also known as Bench Warrant for the defendant's arrest. Most often, especially upon a felony violation, the warrant will contain a "no bond" condition. This will require the Defendant to remain in custody until a hearing date is set upon a motion for bond.

Some of the most common issues that are associated with probation include the following:

  • Probation Violation
  • In Court Surrender
  • Early Termination of Probation
  • Modification of Probation
  • Motion to Travel While on Probation

If you have been charged with a crime in Broward County or are currently on Probation and are in need of consultation, contact Fort Lauderdale Criminal Defense Lawyer, Dave Simmons at 954-765-3540.

Probation Violation

In Florida, a Violation of Probation occurs when an offender substantially and willfully violates the conditions of Probation. Probation Due Process proceedings differ significantly from a normal criminal charge because they carry a lower standard of proof and lack many of the constitutional and procedural safe guards embedded in non-probation related cases.

  • Beyond A Reasonable Doubt Standard Does Not Apply.
  • No Right to a Jury Trial.
  • Hearsay is Admissible against you in the Violation Hearing.
  • No Right to Automatic Bond While Awaiting a Violation Hearing.
  • No Statute of Limitations.
  • No Right against Self-Incrimination.
  • Tolling of Probation Period

Upon your Probation Officer finding you in Violation of Probation, the Officer will submit to the Court an Affidavit of Violation of Probation. The Affidavit is a sworn statement by the Probation Officer detailing why the Officer has a reasonable belief that the Defendant committed the violation. Upon receipt of the Affidavit of Violation of Probation, the Court will review the allegation outlined in the warrant and determine whether there a reasonable basis exists to sign the warrant and issue a "Capias" also known as Bench Warrant for the Defendant's arrest. Most often, especially upon a felony violation, the warrant will contain a "no bond" condition. This will require the Defendant to remain in custody until a hearing date is set upon a motion for bond.

The Court will then set a hearing called a First Violation of Probation Hearing. It is often advantageous to the offender to have the case resolved at this first hearing. A skilled violation of probation lawyer will have already “assessed” the case looking for the best possible resolution.

When the case cannot be resolved at the FVOP hearing, the Court may set a Final VOP hearing. This is an evidentiary hearing where the state must prove to the court a willful and wanton violation of probation. The State must prove by the greater weight of the evidence that a violation of probation occurred. It is important to be aware that this is a lower standard of proof that is found in jury trials. It is important to note that the Court has broad discretion in determining whether a willful or wanton violation of probation exists.

There are Two Type of Violations of Probation

  • Technical Violations:
  • Substantive Violations

A Technical Violation of Probation is when a "condition of probation" has not been met by the Offender. There are two type of Violations of Probation, (1) Standard Violations and (2) Substantive Violations. Examples of some of the most common standard violations include:

  • Absconding or failing to meet with the probation officer at specified times
  • Dirty Urine
  • Failing to Complete a Court Ordered Program
  • Leaving the Jurisdiction of Probation
  • Moving your Residence without Prior Approval of your Probation Officer
  • Failure to Follow Instructions of the Probation Officer
  • Failure to Pay Cost of Supervision
  • Possession of a Firearm while on probation
  • Associating with Person Engaged in Criminal Activity
  • Using Alcohol to Excess or Possessing any Drugs or Narcotics

A Substantive Violation occurs when an offender is arrested for a new criminal offense while under Court Ordered Supervision. Being charged with a new crime can greatly impact the severity of the case (especially if under felony supervision) because this will cause an individual to "score higher" under the Criminal Guild lines and possibly incurring a mandatory prison sentence.

Penalties for Violation Probation or Community Control

The Court can has three options in sentencing a person in violation of probation.

  • Reinstating the Terms of Probation
  • Modifying the Terms of Probation
  • Revoking Probation.

Penalties for a violation of Probation can be extremely harsh. For example, if a Defendant originally resolved a charge for Possession of Cocaine to a term of probation, and upon a violation of this probation, the Court would have complete dissertation and could impose a maximum sentence of 5 years Florida State Prison in this type of case. This is an example of the Court Revoking Probation and invoking a State Prison Sentence. The Court could also sentence the Defendant to less draconian sanctions such as a reinstatement or a modification of the probation.

Law Offices of Dave L. Simmons, P.A.
The Law Offices of Dave L. Simmons, P.A.
"Defending Your Violation of Probation Charges in Court"
REPRESENTATION BY AN EXPERIENCED
FORT LAUDERDALE PROBATION VIOLATION ATTORNEY

If you have been charged with a misdemeanor or felony violation of probation in Fort Lauderdale or Broward County, contact an experienced and skilled Broward Violation of Probation Lawyer. Attorney, Dave Simmons at the Law Offices of Dave L. Simmons, P.A. will utilize various defense strategies with the mindset of obtaining the most favorable result in your case including the following:

Standard of Proof

The Court can revoke probation or community control only upon the State proving by the greater weight of the evidence that the Defendant willfully and substantially violated any condition of probation. Florida provides that a revocation of probation is appropriate only when the Defendant violates "in a material respect" the conditions of probation. The Court "has broad discretion to determine whether a willful and substantial violation of probation has been proven by the greater weight of the evidence. A skilled and experienced criminal defense lawyer will look for weakness in the State case with respect to this Standard of Proof in an effort to have the warrant dismissed or the probation reinstated.

Often probation violations are resolved through negotiations with that Prosecutor or the Judge especially at the First Violation Hearing. An experienced and skilled VOP lawyer will have already made contact with the Prosecutor and the Probation Officer prior to this hearing in an effort to “vet” the case and be prepared to resolve the case in the Client’s best interest by having the probation reinstated or the warrant dismissed.

If you have been charged with a crime in Broward County or are currently on Probation and are in need of consultation, contact Fort Lauderdale Criminal Defense Lawyer, Dave Simmons at 954-765-3540.

Motion for In-Court Surrender

Upon your Probation Officer finding you in Violation of Probation, the Officer will submit to the Court an Affidavit of Violation of Probation. The Affidavit is a sworn statement by the Probation Officer detailing why the Officer has a reasonable belief that the Defendant committed the violation. Upon receipt of the Affidavit of Violation of Probation, the Court will review the allegation outlined in the warrant and determine whether there a reasonable basis exists to sign the warrant and issue a "Capias" also known as Bench Warrant for the Defendant's arrest. Most often, especially upon a felony violation, the warrant will contain a "no bond" condition. This will require the Defendant to remain in custody until a hearing date is set upon a motion for bond. However, it may be possible to avoid going to jail upon an active warrant by the filing of a Motion for In-Court Surrender.

A Motion for In-Court Surrender could be filed prior to the Defendant surrendering on the no bond bench warrant. If the Court grants this motion, the Court then would all the Defendant to surrender in court with his/or her attorney by their side instead of surrendering to the jail and waiting for a hearing date to be set. At this hearing an experienced and skilled defense lawyer will look to resolve the case at this "First Violation of Probation Hearing". At this FVOP Hearing, an experienced and skilled Violation of Probation Lawyer will seek the following advantageous results:

  • Dismissal of the Warrant
  • Reinstating the Defendant out on Probation without Jail Time
  • Modifying and Reinstating the Probation without Additional Jail Time
  • Securing a Bond or Releasing You on Your Own Recognizance (ROR) on the Warrant.

If you have been charged with a crime in Broward County or are currently on Probation and are in need of consultation, contact Fort Lauderdale Criminal Defense Lawyer, Dave Simmons at 954-765-3540.

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