Violation of Probation
FORT LAUDERDALE VIOLATION OF PROBATION ATTORNEY
Probation is defined by Chapter. 948 of Fla. Stat. as a type of community service requiring an, "Offender", a person under the supervision of the Court to comply with both "general" and sometimes "special" conditions of probation. The State of Florida considers a probation sentence, a privilege not a right, with its principle function being the rehabilitation of a Defendant and the protection of society.
In Florida, a Violation of Probation occurs when an Offender substantially and willfully violates any condition of probation. Probation due process proceedings differ significantly from normal criminal charges because they carry a lower standard of proof and lack many of the constitutional and procedural safeguards embedded in none-probation related cases including:
- 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.
Upon your Probation Officer finding you in Violation of Probation, the Officer will submit to the Court an Affidavit of Violation of Probation. This affidavit is a sworn statement by the Probation Officer detailing why the Officer has a reasonable belief that the Offender committed the violation. Upon receipt of the Affidavit of Violation of Probation, the Court will review the allegations outlined in the warrant and determine whether a reasonable basis exists to sign the warrant and issue a, "Capias", also known as a 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 VOP hearing date is set or upon a date set for a motion for bond.
THERE ARE TWO TYPES OF VIOLATION OF PROBATION
- Technical 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 (A) Standard Violations And (B) Special Violations. Examples of some of the most common Standard Violations include: (1) Absconding or failing to meet with the probation officer at specified times; (2) Dirty Urine; (3) Failing to Complete a Court Ordered Program; (4) Leaving the Jurisdiction of Probation; (5) Moving your Residence without Prior Approval of your Probation Officer; (6) Failure to Follow Instructions of the Probation Officer; (7) Failure to Pay Cost of Supervision; (8) Possession of a Firearm without Consent of your Probation Officer; (9) Associating with Persons Engaged in Criminal Activity; (10) Using Alcohol to Excess or Possessing any Drugs or Narcotics unless Prescribed by a Physician. Special Violations of Probation can be an exhaustive list of conditions tailored to the specific case for which the offender is under Court Supervision.
- Substantive Violations:
- A Substantive Violation is an arrest 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; (1) Reinstating the Terms of Probation; (2) Modifying the Terms of Probation; and (3) 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.
The Law Offices of Dave L. Simmons, P.A.
"Defending Your Violation of Probation Charge in Court"
If you have been charged with a Violation of Probation, you may feel embarrassed and upset at the situation. It is the goal of the Law Office of Dave L. Simmons, P.A. to have your warrant dismissed or your probation reinstated by utilizing every defense strategy available including:
- 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's Case with respect to this Standard of Proof in an effort to have the warrant dismissed or the probation reinstated.
- Filing A Motion For In-Court Surrender: . Generally, upon receipt of the Affidavit of Violation of Probation, the Court will review the allegation outlined in the warrant and determine whether there is 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 surrender and to remain in custody until a VOP hearing date is set or upon a date set for a motion for bond.
Alternatively, 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 would then allow the Defendant to surrender in Court with his/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" with the possibility of dismissing the warrant; reinstating the Defendant out on probation without jail time; modify and reinstate the probation without additional jail time; securing a bond or ROR on the warrant.
The Law Offices of Dave L. Simmons, P.A. vigorously defends its clients against a violations of probation and community control charges and the penalties that accompany the conviction. Take the time to know your rights and defenses surrounding this charge by calling office to set up your free consultation so that we may discuss your case in person: (954) 765-3540