In the event of a violation, the assigned probation officer will file an affidavit of violation with the clerk of court and forward a copy to the judge. In misdemeanor cases, a probation violation arraignment will be set and the accused person will receive a hearing notice in the mail. In felony cases, once the affidavit is filed and a copy is forwarded to the judge, a warrant is typically issued for the person's arrest and that person is held on no bond. Where the violation of felony probation involves failure to meet certain financial obligations exclusively, the court may elect to send the accused a notice of hearing in lieu of issuing a warrant. In the event of a felony probation violation, where a warrant is issued, your St. Petersburg criminal defense attorney will file a motion to set bond before the judge who issued the warrant, and schedule a hearing. The court may or may not set a bond.
Probation violations are typically resolved at the arraignment or at a pre-trial hearing thereafter. If the accused person admits the violation, he or she may be sentenced at that time, or the imposition of sentence may be deferred to a later time. If the accused person persists in his or her denial of the violation, the matter will be set for what is called an "Evidentiary Hearing" (in Pinellas County) or a "Revocation Hearing" in (Hillsborough County). If the court determines, following the hearing, that the accused person has in fact violated his or her probation, the court will sentence that person accordingly. If the court determines that the accused person did not violate the terms and conditions of his or her probation, the court will dismiss the affidavit of violation, and the accused person will not be subject to further sanctions. Of course, if the accused was in custody while awaiting hearing, he or she will be released. Each of the aforementioned issues and scenarios are discussed in greater detail below.
When I started with the Pinellas County State Attorney's Office nearly twenty years ago, I was assigned to handle probation violations in Division H (one of Pinellas County's misdemeanor trial divisions). Handling VOPs (as they were affectionately called) was a job that no one really wanted but because I was the new guy at the time, it is what I was tasked with. Because they were misdemeanor offenses, sentencing guidelines did not apply, so they really weren't all that complicated. At the time, however, they seemed complicated and it took me several months to begin to understand the substantive and procedural laws that were applicable. By that time, I was no longer the new guy, and my supervisor gave me the option to pass the baton. I didn't. I stayed on VOPs and continued to learn their intricacies. I read the statutes and the applicable case law. Every Friday, I ran the calendars for the State. I was transferred to the misdemeanor domestic violence division (Division R), where I remained for nine months. Throughout that entire time, I was the division VOP attorney. After nearly two years with the Pinellas County State Attorney's Office, I was promoted to one of the felony divisions (Division D) and was assigned to VOPs. Here, I began to learn the applicability of sentencing guidelines and other matters related to probation violations in felony cases. I handled complicated evidentiary hearings. In my last year as a prosecutor, a new felony division was created in Pinellas County (Division T). Although I had the most seniority, and therefore a choice in the matter, I volunteered nonetheless to handle the division's probation violations. After six years of prosecuting them, at both the misdemeanor and felony level, I had developed a thorough understanding. This has made me a much more effective criminal defense attorney than I would have been otherwise. While it presented a challenging learning curve at the beginning, and a lot of work throughout my time as an assistant state attorney, I garnered a knowledge base that benefits my clients tremendously today.
Types of Probation Recognized Under Florida Law and Offense Specific Conditions
This section lists the types of probation recognized under Florida law, and the various nuances that are associated with each type.
Standard probation is what most offenders can expect to receive where the offense is not particularly aggravating, and does not involve either a drug crime or a a sex crime. Where the underlying offense is a felony, and standard probation is imposed, the accused person can expect to be on supervision anywhere from 18 to 24 months. In accordance with section 948.04(1), "defendants who are found guilty of felonies, and who are placed on probation, shall be on supervision for a period not to exceed two years, unless otherwise specified by the court. By law, this is the "default" period of supervision and it is rare that my clients are required to do more than 24 months of supervision. If I have a client is who is required to complete a long term substance abuse program, or is required to pay a substantial sum of restitution, I will sometimes ask the court to impose a period of probation that exceeds 24 months to give my client sufficient time to successfully complete his or her conditions, and avert a possible probation violation.
The standard conditions of probation in Florida are set forth in section 948.03(1), and include (in pertinent part): (a) reporting to the assigned probation officer as directed (this usually occurs once per month for the duration of supervision); (b) permitting the probation officer to visit you at home, work, or elsewhere; (c) working at suitable employment to the extent possible, (d) remaining within a specified place (probationers are typically not permitted to leave the county of residence without prior permission from the probation officer; (e) living without violating the law (a conviction in court is not necessary for such violation of law to constitute a violation of probation; (f) making restitution to the victim for any losses that are directly or indirectly related to your crime; (g) supporting legal dependents; (8) not associating with persons engaged in criminal activities; (h) submitting to random drug screening; (i) being prohibited from possessing, carrying, or owning a firearm or a weapon without first procuring the consent of your probation officer; and (j) being prohibited from using intoxicants to excess.
As indicated above, standard conditions of probation are applicable in every case where an accused person is placed on probation as part of his or her sentence. Certain additional "special conditions" are required by law, depending on the nature of the crime, and are imposed in addition to the standard conditions listed above. For example, in accordance with Florida statute section 948.038, in cases involving an act of domestic violence, the court shall order a person convicted to attend and successfully complete a batterers intervention program as a condition of probation. Florida statute section 948.033 provides that "for a probationer or community controllee whose crime was committed on or after October 1st, 2008, and who has been found guilty of committing a crime for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, the court shall, in addition to any other conditions imposed, impose a condition prohibiting the probationer or community controllee from knowingly associating with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity." These are all examples of special conditions that must imposed by law, orally pronounced at the time of sentencing, and specifically enumerated in the sentencing order.
A special condition of probation that is routinely imposed is a waiver of your Fourth Amendment right against unlawful search and seizure. Ordinarily, to search your person, home, car, or office, a law enforcement officer is first required to secure a search warrant from a "neutral and detached" judge or magistrate. The warrant must be based on probable cause and must describe with particularity the person or premises to be searched. There are a number of exceptions to the warrant requirement, of which "consent" is one. For addditional reading on this topic, see our prior blog post entitled "Search and Seizure in Florida: An Overview". When you waive search and seizure as a condition of probation, you have "consented" to a search without a warrant, and this is something you must be aware of. In a recent case, a probation officer conducted a search of my client's residence and found marijuana in plain view, which resulted in a probation violation. My client was aware of the search and seizure waiver but evidently did not expect a visit that day. Because of the waiver (as a condition of probation), there was nothing I could do in terms of having the evidence suppressed. He was, however, placed back on supervision and averted a jail sentence. Being on probation entails diminished constitutional rights, including the right against unlawful search and seizure, and this is something you must always keep in mind.
Where standard probation is imposed, most judges in Pinellas and Hillsborough Counties will allow the accused person to file a motion for early termination at the halfway point if the accused has satisfactorily completed all standard and special conditions (if any), and has had no new law violations. This is authorized by law: Florida statutes section 948.04(3) provides that "if the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the Court at any time before the scheduled termination date. In misdemeanor DUI cases, where the matter is pending in South County Traffic Court (St. Petersburg) or North County Traffic Court (Clearwater), the client can have his or her probation terminated on intake, with a one time report, if he or she has completed all conditions by the time the plea is entered. As a St. Petersburg DUI attorney, I ensure that my clients have completed all conditions before to resolving the case in court so that they can take advantage of this opportunity.
Probation Violation Proceedings can be complicated, especially in felony cases and where the accused has been designated a Violent Felony Offender of Special Concern. Often times, he or she is facing significant jail or prison time and an adjudication of guilt where it was not imposed as part of the original sentence. If you are facing a probation violation in the Tampa Bay area, a St. Petersburg Criminal Defense Attorney can help.
Contact The Kilfin Law Firm, P.C. at (888) 258-8049 for an initial consultation.
Under Florida Statutes section 948.10(1), the Department of Corrections is required to develop and administer community control program. As indicated above, community control is a much more restrictive form of supervision than standard probation, and managed by probation officers with limited case loads. Community control is, essentially, a form of home confinement (or confinement is a substance abuse treatment facility) which is offered as an alternative, community based means of punishing an offender in lieu of incarceration. The community controllee is typically allowed to be out of residence for the purpose of working at a lawful occupation, but is confined to his or her residence otherwise. By law, community control programs must be rigidly structured and designed to accommodate offenders who would have been incarcerated but for the program's existence.
Community controllees are individuals who are deemed unsuitable for standard probation. The targeted population for community control includes, more specifically, (a) probation violators charged with technical violations or new violations of law; (b) parole or conditional release violators charged with technical violations or new violations of law; and/or (c) individuals found guilty of felonies who, due to their criminal backgrounds or the seriousness of the offense, would not be placed on regular probation. The statute provides that caseloads should be restricted to a maximum of 30 cases per officer in order to ensure an adequate level of staffing.
Community control may or may not involve electronic monitoring. If the court believes that the accused may have an issue remaining confined to his or her residence, or that the accused presents some level of danger to the community, the court may impose electronic monitoring as a condition of community control to ensure compliance. As a St. Petersburg criminal defense attorney, very few of my clients are placed on community control; most are sentenced to standard probation. For those that have been placed on community control, I cannot recall an instance wherein the client was subject to electronic monitoring.
Community control is often imposed in conjunction with a period of standard probation as a form of "split sentence" (e.g. two years of community control, followed by two years of standard probation). The law does allow the court to consider a motion to terminate community control or, in the alternative, to convert the balance to standard probation prior to the expiration of the originally imposed term of community control upon completion of the sanctions imposed. The court will sometimes consider a "rollover" motion even if all conditions are not yet complete. In case of mine from a couple of years ago, my client had been placed on standard probation in Hillsborough County for a third time DUI and, within a couple of weeks, was arrested for a fourth DUI in Pinellas County. His mother hired me to represent him in both counties as he was now facing a significant period of incarceration in both proceedings. After much negotiation, he was admitted into Pinellas County's post adjudicatory drug court (Division Z) and averted a prison sentence. As a condition, he was required to enter and complete a long term drug treatment in program (at least 12 months). The prosecutor in Hillsborough County agreed to place him on community control there, in lieu prison, with the same special conditions. This person was highly motivated to turn his life around, and did extremely well in treatment. He worked diligently at the other conditions of community control and, although he had not completed them, the court granted my motion to roll his community control to standard probation prior to the end of the otherwise applicable period. This person had, by then, been on supervision for two years, had successfully completed long term residential treatment, after care, and has since secured gainful, full time employment helping the less fortunate. He has not had a single violation since being placed on supervision.
In accordance with Florida Statutes section 948.20(1), if it appears to the court that the accused person is a "chronic substance abuser" whose criminal conduct is a violation of section 893.13(2)(a) or (6)(a) or other non-violent felony, the court may adjudicate the defendant guilty or stay and withhold imposition of guilt and place the person on drug offender probation". Florida statutes section 893.13(2)(a) involves the purchase of controlled substances and (6)(a) involves the possession of controlled substances.
Like community control programs, the Florida Department of Corrections is required to develop and administer a drug offender probation program. The program emphasizes a combination of treatment and intensive community supervision. Drug offender probation involves much closer scrutiny by the probation officer than what would be the case with standard probation. It may or may not involve the measures normally associated with community control, including confinement to the home or a residential drug treatment facility. Ordinarily, drug offender probation requires a curfew from 10:00 p.m. to 6:00 a.m., which is less stringent than community control. A substance abuse evaluation, treatment (if required), and random drug screening are always a component of drug offender probation. Most of my clients who have ended up on drug offender probation did so after a violation (or two) of standard probation for a drug related offense. A positive urinalysis or a new drug related offense will usually result in a term of drug offender probation, where it was not imposed at the time of sentence.
Florida law mandates the imposition of certain conditions where the accused person is convicted of a sexually motivated crime and is placed on probation. Many sex crimes in Florida will score mandatory prison on the sentencing guidelines so any period of probation that is imposed will usually follow an incarcerative component, as part of a split sentence. This is unless your criminal defense attorney is able to reach an agreement with the state where there is to be no incarcerative component, or is otherwise able to secure a downward departure from the low end of the guideline range. An experienced St. Petersburg criminal defense lawyer can explain sentencing guideline issues, including departure bases, in greater detail. The conditions of sex offender probation are considered standard, as opposed to special, conditions and as such, do not require oral pronouncement at the time of sentencing.
The standard conditions of sex offender probation include the following: (a) a mandatory curfew from 10:00 p.m. to 6:00 a.m.; (b) if the victim was under the age of 18, a prohibition on living within 1000 feet of a school, child care facility, park, playground, or other place where children regularly congregate; (c) active participation in, and successful completion of, a sex offender treatment program by a qualified practitioner; (d) a prohibition on any contact with the victim, either direct or indirect unless approved by the victim, a qualified practitioner, and the court; (e) if the victim was under the age of 18, a prohibition on contact with a child under the age of 18, except as provided by law; (f) if the victim was under the age of 18, a prohibition on working for pay at any place where children regularly congregate; (g) a prohibition on viewing or possessing pornography, except as part of a sex offender treatment plan; (h) for probationers whose crime is committed on or after July 1st, 2005, a prohibition on accessing the internet or other computer services until a qualified practitioner approves and implements a safety plan following the completion of a risk assessment; (i) the submission of a specimen of blood or other approved biological specimen to the Florida Department of Law Enforcement to be registered with the DNA data bank; (j) a requirement that the probationer or community controllee make restitution to the victim for all necessary medical and related professional services; and (k) submission to a warrantless search by the probation officer of the probationer's person, residence, or vehicle.
If the sexual offense was committed on or after October 1st of 1997, the probationer will also be subject to the following sanctions: (a) annual polygraph examinations as part of a treatment program; (b) maintenance of a driving log and a prohibition against driving a motor vehicle alone without the prior approval of the supervising officer; (c) a prohibition against obtaining or using a post office box without the prior approval of the probation officer; (d) if there was sexual contact, submission to an HIV test with the results to be released to the victim or the victim's parents or guardian; (e) electronic monitoring when deemed necessary by the community control or probation officer and his or her supervisor, and ordered by the court at the recommendation of the Department of Corrections.
For certain types of sexual offenses committed on or after September 1st, 2005, and if other statutorily enumerated criteria are met, electronic monitoring is mandatory. For more information, see the Sex Offenses section of our website.
The Process By Which Probation Violations Are Prosecuted
Probation violations can either be "technical" or "substantive" in nature. A technical violation involves a breach of either the standard or special terms that were imposed as conditions of supervision. Examples of technical violations include a positive urinalysis, failure to make restitution, failure to satisfy monetary obligations, including monthly cost of supervision and surcharges, and/or failure to complete court ordered treatment. A substantive violation occurs where the accused person is arrested for a separate crime while on probation or community control.
Where there are reasonable grounds to believe that a probationer or community controllee has violated the terms of his or her supervision, either technically or by having committed a new law violation, any law enforcement officer who is aware of the probationer's status as such may arrest him or her. This is sometimes referred to as a "cop vop" and ordinarily occurs when the person is arrested for a new offense and the officer, in running the person's history, becomes aware that he or she is on probation. The person will simultaneously be arrested for the probation violation. A bond will be set on the new (or "open") charge if the person otherwise qualifies (most will), but the bond on the probation violation will likely be set at zero. On an open charge, the accused person is presumed innocent until he or she enters a guilty plea to the charge, or is otherwise found guilty by a judge or jury. As such, he or she is constitutionally entitled to a bond unless the offense is a capital or life felony and the proof of guilt is evident, or the presumption is great. In a probation violation situation, the person has already been found guilty of the underlying charge and therefore has diminished constitutional rights. It is on this basis that the person can (and usually is) held without bail on a felony probation violation.
Upon becoming aware of the violation, the person's probation officer will prepare and file a charging document, called an "affidavit of violation of probation" with the clerk. The affidavit includes a short and plaint statement, under oath, attesting to the basis for the violation. If there is more than one violation, then each basis will be specifically enumerated. It is the filing of the affidavit that initiates formal court proceedings on the violation. A warrant is not typically requested or issued in these circumstances as the probationer is already in custody. If the arrest on the probation violation occurred in another Florida county, the accused will be transported to the county where sentence was originally imposed to answer for the violation (after the new substantive offense, if any, is resolved in the county of commission).
Where the violation of probation is technical, the matter proceeds a bit differently. Here, the probation officer becomes aware of the purported violation and assesses whether it is willful and substantial. If not, he or she may decide to forgo the filing of a VOP affidavit. If the probation officer determines that the probationer or community controllee did violate the terms of their supervision in a willful and material respect, the officer will prepare and file the affidavit. A copy of the affidavit is forwarded to the court. If the underlying charge is a felony, a warrant accompanies the affidavit, which the judge signs and files with the clerk. The bond amount (which, again, is usually zero) is stamped on either the face or the back of the warrant. If the underlying offense is a misdemeanor, the accused person will usually receive a hearing notice, in lieu of a warrant being issued.
Sometimes the probation officer will make the arrest himself, where he has reason to believe that there has been a willful and substantial violation of felony probation, either technical or substantive. This usually occurs when the probationer checks in for monthly reporting. The person is arrested on site, transported to the county jail, and held without bail. The probation officer then files the requisite affidavit to initiate further proceedings.
Where the violation of felony probation is technical in nature, and relates specifically to a failure to pay financial obligations, the probation officer will sometimes request to the court that a "notice to appear" be issued, in lieu of a warrant being issued. The request for a NTA is sent to the court along with a copy of the violation affidavit, after a copy of the latter has been filed with the clerk of court.
Where the person is arrested for a probation violation, either by a police officer (in conjunction with the commission of a new substantive offense), the probation officer, or pursuant to a warrant, he or she must be brought before a judge within twenty-four hours thereafter for what is called a first appearance or advisory hearing. Here is what you must know: the judge at the first appearance hearing is, in all likelihood, not the judge that placed the offender on probation originally and/or the judge who signed the no bond warrant. The first appearance judge will not know anything about the nature and circumstances of the violation. It is exceedingly rare that probation violations are resolved at the first appearance hearing. In felony cases, the matter is further complicated by the applicability of sentencing guidelines, which are usually not prepared until well after the first appearance hearing. In my nearly twenty years of practicing law, as both a Pinellas County state prosecutor and a St. Petersburg criminal defense attorney, I cannot recall a single instance wherein a probation violation, felony or misdemeanor, was resolved at the first appearance hearing.
In accordance with Florida Statutes section 948.06(d)(1), at the first appearance hearing for an offender who has been arrested for violating his or her probation or community control by committing a new violation of the law, the court (a) shall inform the person of the violation; or (b) may order the person to be taken before the court that granted the probation or community control if the person admits the violation. If the person does not admit the violation at the first appearance hearing then, in accordance with section 948.06(d)(2), the court: (a) may commit the probationer or offender or may release the person with or without bail to await further hearing; or (b) may order the offender or probationer to be brought before the court that granted the probation or community control.
In deciding whether to set bail at the first appearance hearing on a probation violation, the court may consider whether the offender "is more likely than not to receive a prison sanction". Although they can, most first appearance judges are not going to set a bond at the first appearance hearing. They have no knowledge of the nature of the violation, they didn't sign the warrant, and the last thing they want to do is "step on the shoes" of the judge who did. This is not to say, however, that it doesn't sometimes happen. A couple of months ago, on a Friday night, a woman contacted me to represent her husband who had just been arrested in Pinellas County on a Hillsborough County VOP warrant for violating his probation (the case was pending in Hillsborough County). He was being held on no bond and was to be brought before a Pinellas County judge the following morning for a first appearance hearing. Because the case was approximately 20 years old (yes, he had been on probation that long), the violation was technical in nature, my client had strong ties to the community, and no history of failing to appear for court dates, the first appearance judge granted my motion to set a $5,000.00 bond. His wife posted it, and he was out that night. Less than 30 days later, the matter was successfully resolved in Hillsborough County, and my client is not longer on probation.
After the VOP affidavit is filed, and after the first appearance hearing occurs (assuming the probationer had been arrested), the matter will be set for what is called a VOP arraignment. As a St. Petersburg probation violation lawyer, I file a written denial of the violation and a demand for discovery as part of my standard initial pleadings. The discovery in a probation violation case will typically include a copy of the VOP affidavit, the warrant, and what is called a "VOP Report". The VOP Report is prepared by the probation officer and contains a comprehensive overview of the case history, including any history of previous probation violations, whether the accused was adjudicated guilty of the offense (or whether adjudication of guilt was withheld), prior record, and a recommendation to the court as to how the probation violation should be disposed of. Sometimes the probation violation is resolved at the arraignment. If it is not, the case will be set for what is called a VOP Pre-trial Hearing (in Pinellas County) or a "Revocation Hearing" (in Hillsborough County).
In most instances, these hearings are set before the judge who originally placed the offender on probation (and signed the warrant). There are a few exceptions. In Hillsborough County, technical violations of felony probation proceed before a judge who is assigned to handle them. Prior to 2018, Pinellas County had the same procedure in place for technical violations of felony probation. Pinellas has since done away with that method in circuit court and technical violations are addressed by the division judge (the judge who placed the offender on probation). At the misdemeanor level, however, Pinellas County continues to adhere to the former practice: VOPs are resolved in Division O by a judge who is assigned to handle those matters exclusively. More specific questions about how VOPs proceed in the various jurisdictions throughout the greater Tampa Bay area should be directed to an experienced criminal defense attorney.
In accordance with Florida Statute section 948.06(2)(a) the court, upon the probationer or community controllee being brought before it, "shall advise him or her of such charge of violation and, if such charge is admitted, may forthwith revoke, modify, or continue the probation, or community control, or place the probationer into a community control program". In terms of resolution, these are really the only three options.
If the court revokes probation, following an admission to the violation, it can impose any sentence which it might have imposed before placing the defendant on probation or community control. Stated differently, the court has the authority to sentence the accused to a period of incarceration up to the statutory maximum for the underlying offense, no matter how long the person has been on probation. As stated above, the maximum period of incarceration that may imposed for a second degree misdemeanor is sixty days in the county jail and, for a first degree misdemeanor, it is one year in the county jail. For a third degree felony, the maximum period of incarceration is five years in state prison, for a second degree felony, it is fifteen years in state prison, and for a first degree felony it is, typically, thirty years in state prison. Where the court revokes felony probation, it must also consider the sentencing guidelines and impose, at a minimum, the low end range unless a valid guideline departure basis exists. The applicability of sentencing guidelines to probation violation proceedings is discussed in greater detail below.
If the person scores non-state prison on the VOP, and the court revokes the original term of supervision, it can impose a new term of probation or community control. The total period of supervision served, when combined with the length of the new term, cannot exceed the statutory maximum for the underlying offense. For example, with regard to a third degree felony, the statutory maximum is five years, Thus, the court could not sentence a probation violator, who has already served three years of probation, to an additional thee years of supervision after revoking the original term because the total period would then be six years, and would exceed the statutory maximum by a year.
The third option, following an admission by the offender to a probation violation, is to continue him or her on the original term of supervision. This is usually what happens. Once the offender admits the VOP, he or she resumes supervision. Where the court continues the probationer on supervision, it will usually modify the original term by adding conditions such as community service hours or, perhaps, a period of jail time. If the accused has been incarcerated in the county jail pending resolution of the probation violation, and no additional time is to be served as part of a modified sentence, he or she will be released at that time.
There are a few other aspects to probation violation proceedings that you should be aware of. First, the court retains jurisdiction to adjudicate the probation violator guilty of the underlying crime where adjudication of guilt was withheld at the time the original sentence was imposed. For additional information, see the Withholding of Adjudication section of our website, under Client Solutions. As a St. Petersburg criminal defense attorney, my initial priority in a probation violation situation is to to keep my client out of jail. Of greater significance is maintaining that withhold of adjudication and this is where effective lawyering and preparation really comes into play. For a person with no prior felony convictions, an adjudication can have devastating implications for that person's future, both professionally and otherwise.
In 2007, the Florida legislature implemented the "Anti-Murder Act", which is codified section 948.06(8) and pertains to individuals who have violated the terms of their felony probation and meet the additional statutory criteria. A person who fits within the provisions of the Ant-Murder Act is dubbed a "Violent Felony Offender of Special Concern". I have dedicated an entire section of the website to a discussion of the Anti-Murder Act under Violent Felony Offenders of Special Concern. Suffice to say for our purposes here, a VFOSC is not entitled to a bond on a probation violation, or any sentence that is less than the low end of guidelines unless and until the court first determines that the accused person is not a danger to the community, at what is called a "dangerousness hearing". If you or a loved one have violated felony probation, and have been designated a "Violent Felony Offender of Special Concern" representation by a qualified St. Petersburg criminal defense attorney, who has ample experience handling these types of cases, is a must.
So what happens if the accused person has denied the probation violation, and persists in his or her denial? The matter will be set for what is called an "evidentiary hearing" (in Pinellas County) or a "revocation hearing" (in Hillsborough County), wherein the court will conduct formal proceedings to determine whether the accused person has violated his or her probation in a material respect. It is to a discussion of the substantive and procedural aspects of a VOP evidentiary hearing that we now turn.
As a prosecutor with the Pinellas County State Attorney's Office, Donald J. Kilfin was assigned to handle probation violations throughout his entire six years of service. He has continued to litigate probation violation matters on a routine basis, as a St. Petersburg criminal defense lawyer, throughout the courtrooms of Tampa Bay. With nearly 20 years of experience, Mr. Kilfin is intimately familiar with the manner in which these cases are prosecuted, and how to attain the best possible results for his clients.
Evidentiary Hearings
In some instances, the accused person may not enter an admission to the probation violation. The most obvious reason for not doing so is that he or she did not, in fact, violate the terms and conditions of his or her probation in a material respect. Under these circumstances, the matter will be set for what is called an "evidentiary hearing" or a "revocation" hearing. These hearings are akin to non-jury trials in that both sides have the opportunity to call witnesses and present evidence before the presiding judge, and each has the right to cross-examine witnesses called by the opposing side. Where the accused does not enter an admission to the violation, certain due process requirements must be met before the judge can revoke probation and impose a sanction for the purported violation. In that respect, it isn't much different than an open case: in an open case, if the accused does not enter a plea (of guilty or no contest), the matter will be set for trial. There are, however, a number of important differences between a trial in an open case, and an evidentiary hearing in a probation revocation proceeding.
First, in an open case, the accused person has an absolute right to a trial by jury on the issue of guilt or innocence (but may elect to proceed non-jury). In a probation violation proceeding, the accused person does not have the right to a jury trial on the issue of whether he or she violated his or her probation. In an open case, whether it proceeds via jury or non-jury trial, the state must prove its allegations beyond reasonable doubt. In a probation violation proceeding, the state's burden of proof is a "preponderance of the evidence", which is a much lesser burden of proof than beyond a reasonable doubt. In an open case, the accused has the right not to testify. In a probation revocation hearing, the accused person can, under certain circumstances, be called to the stand and questioned about the alleged violation (there are exceptions: where the basis for the violation is a new charge, the accused cannot be questioned about it as he or she continues to enjoy a Fifth Amendment right against self incrimination as to that offense). Also, in a open proceeding, hearsay is generally inadmissible. In a revocation hearing, hearsay is generally admissible; it just can't be the sole basis upon which the court revokes the accused person's probation.
As is the case with a non-jury trial, the judge in an evidentiary hearing acts as the finder of fact, and applies the applicable law to those facts in reaching a decision. If the court determines, after a full hearing on the merits, that the accused did not violate probation, the affidavit of violation (the charging document) is dismissed. If the court determines that there has been a material of violation probation, the court can exercise any of its thee options options, as set forth above.
The right to an evidentiary hearing belongs to the accused; he or she can choose to exercise that right or may, in the alternative, elect to admit the violation, without having a hearing. A person would, typically, elect to forgo the hearing if the prospect of prevailing is negligible and/or the person's attorney has negotiated a favorable resolution. As a St. Petersburg probation violation attorney, I always try to work a favorable resolution for my client in lieu of proceeding to a formal revocation hearing. The accused has a lot of disadvantages at these hearings given the lack of right to trial by jury, the much lower burden of proof, the admissibility of hearsay, and the possibility of the client being compelled to testify about alleged technical violations of his or her probation.
Applicability of Sentencing Guidelines in Felony Probation Violation Cases
The first thing you should be aware of is that sentencing guidelines do not apply in misdemeanor cases. Thus, if the court decides to revoke probation in a misdemeanor case, there is no low end range that must be imposed. In that situation, the court can impose anything from time served, to the statutory maximum, if the matter is to be resolved through an incarcerative sentence.
In circuit court, where felony offenses are prosecuted, sentencing guidelines apply to both open charges and probation violations. Every felony offense in the state of Florida is assigned a degree (e.g. third degree felony, second degree felony, first degree felony, life felony, capital felony) which establishes the the maximum penalty that can be lawfully imposed. Every felony offense is also assigned, by statute, a certain number of points which are used to "score" the person at sentencing. The guidelines will take into account the primary offense (the charge before the court for sentencing with the highest number of points), additional offenses (charges that are also before the court for sentencing which score lower than the primary offense) and the accused person's prior record (each prior conviction is also assessed a certain number of points, depending on its nature). Once the points are totaled, a small mathematical calculation is performed. If the resulting number exceeds "44", the court must sentence the person to state prison, unless a valid guideline departure basis exists (for more information on sentencing guideline departures, see the "Resources" section below. Where the person scores prison, the resulting sentence will be no less than a year.
Probation violations are also scored on sentencing guidelines. If the basis for the violation is the commission of a new felony charge, that charge will be added to the score sheet, which will, of course, increase the total points. If the new felony carries more points than the charge for which the accused was initially placed on probation for, the new felony will be scored as the primary. Otherwise, the new felony offense will be scored as an additional offense. Additional points are always assessed in a probation violation situation, whether the basis is a new substantive charge, or a technical violation. For a new felony offense, 12 points are added to the guideline. This is over and above the points that are already assigned to that particular offense and added to the guideline. For a technical violation, 6 points are added to the guideline. The accused may also be assigned 4 "legal status" points, depending on the circumstances. If the accused person has been designated a Violent Felony Offender of Special Concern, then 24 points are added (instead of 12) to the guideline for the commission of a new felony offense (that is before the court for sentencing), and 12 points are added (instead of 6) for a technical violation.
Generally speaking, the guidelines will not apply in a felony probation violation case unless the court is revoking probation, following an admission by the accused, or a finding that the accused is in violation after an evidentiary hearing. If the court revokes probation, and the accused person's guideline score is less than 44, the court can still incarcerate that person up to the statutory maximum, or it can impose a new term of supervision (basically, a "do-over"). If the court accepts the admission, and continues the offender on the original term, then there is no revocation, and the court is not bound by the guidelines. As indicated above, when the court continues the original term of supervision, it will usually modify the conditions by adding requirements, as appropriate. Here is the caveat: when the accused person is on felony probation, and violates by committing a new felony that is before the court for sentencing, and the total points exceed 44, the court cannot continue and/or modify probation. To avoid the imposition of a prison sentence, a valid guideline departure must exist, or your St. Petersburg probation violation attorney must negotiate to have the new charge amended to a lesser felony (that will result in a less than 44 point guideline) or to a misdemeanor.
Defenses
If the client is someone I represented before he or she was placed on probation, I am usually aware in advance that a violation is coming. Often times, the client will contact me and advise that he or she submitted a dirty urine, committed a new offense, or violated the terms of his or her probation in some other way. If the violation appears to be relatively de minimus, my first line of defense is to contact the probation officer. Sometimes, the purported violation can be explained and resolved at that juncture. For example, I recently had an elderly client with an ankle monitor violation. He left the accompanying box at home and realized what he had done sometime thereafter. Probation was notified and, of course, he was quite concerned about a warrant being issued for his arrest as the underlying charge was a felony. After discussing the situation with his officer, it was determined that an affidavit of violation would not be filed after all (the probation officer was sufficiently persuaded that the violation was inadvertent, as opposed to willful). Obviously, this approach will not work in every situation. But, where it appears that the purported violation was not willful (which was my position in the aforementioned example), or substantial, a phone call from your St. Petersburg probation violation lawyer can go a along way in averting a potentially disastrous legal predicament. It should also be noted that not every probation officer is willing to talk to a defense attorney; some have no issue with it whatsoever, while others are about as unaccommodating as it gets.
If it appears that the affidavit of violation will be filed, I will have my client take a proactive approach to mitigating its impact, where appropriate. For example, if the basis for the purported violation is a dirty urine, I will instruct my client to (1) abstain from all illicit drug use; and (2) submit a number of subsequent urinalysis, with (hopefully) negative results, prior to the first court date or the execution of the VOP warrant (if one was issued). In the event of a positive screen, it is a lot better to show up in court with a few subsequent negatives, and for obvious reasons. If the basis is financial, I will have my client come up with as much money as he or she can (including loans from family and friends), and deposit those funds into my trust account. It is amazing what can be accomplished, in terms of resolving a probation violation, when the outstanding financial obligations can be paid in full or close to it. I can recall an instance from many years ago, when I was a felony prosecutor here in Pinellas county, wherein a woman had violated her probation in several respects. At the first court date, her attorney advised that since the time the violation was filed, she had paid restitution in full (and was able to provide proof). She was scoring prison time and the judge asked us to approach the bench to discuss what should be done. I advised the judge that I had no problem placing this person back on probation because of the monumental efforts she had made towards satisfying her restitution obligation in full. And that is exactly what happened: this person averted a lengthy prison sentence by being proactive after the VOP affidavit was filed. Once again, this approach may not carry the day in every case, but it is certainly something that your St. Petersburg probation violation attorney will want to explore in an effort to resolve your matter successfully. Averting (or minimizing) the loss of liberty is always the primary objective here.
If my client is arrested on a VOP warrant, I always attend the advisory hearing. As indicated above, many first appearance judges are reluctant to set a bond on a probation violation, where the division or sentencing judge has set the bond at zero. Sometimes, however, it does happen. I relayed an example above from earlier this year where I was able to get a bond set for my client on a felony probation violation at the first appearance hearing. Because he was arrested on a Friday night, his advisory hearing was set for Saturday morning. I had my arguments prepared in advance and was ready. But for that bond being set, my client would have sat in custody for at least a week (and in all likelihood a lot longer,) waiting to address his custody status with the Tampa judge who set the bond at zero. Once again, averting or minimizing the loss of liberty is the primary objective. It is for that reason I always attend the advisory hearing (no matter what day of the week it is) and make very effort to have my client released until we can bring the matter to resolution.
If (1) the the client is in custody; (2) the judge will not set a bond on the VOP; and (3) it appears that the state can prove that a willful and substantial violation of probation has occurred, I will consider having the client admit to the violation. I will ask the court to defer, or set off, the sentencing date and ask that my client be released on his or her own recognizance pending sentencing. While the court may be reluctant to set a bond (or otherwise release the accused person) on a probation violation initially, the dynamic usually changes after an admission is entered. If the court is convinced that the accused person poses little or no flight risk, is not a danger to the community, and there is a plan to remedy the violation, the court will usually re-consider its position on the accused person's custody status. It has been my experience over the years that if the underlying charge is a crime of violence, a sex crime, or if the accused is facing a significant period of time in prison, the court may be less inclined to release the accused person following an admission to the probation violation and while pending sentencing. If you are facing a probation violation in Pinellas or Hillsborough County, an experienced St. Petersburg criminal defense attorney will typically have had numerous cases before the judge assigned to yours and will be able to evaluate the viability of this approach. Where the client is released pending sentencing, the goal is to get as much accomplished before the sentencing date as possible. Are there outstanding fines and costs? Pay as much as you can. If you can't pay, do community service hours. Many judges will credit you the minimum wage amount toward your fine balance for each hour completed. Do you have treatment sessions left? Do as many as you can. Have you not done DUI school yet? Enroll and compete it. The more that can be accomplished, the better chance you have of a positive outcome in your probation violation matter. Even though it is not required at this juncture (unless specifically ordered by the court), I will have my clients continue to report to their probation officer in a showing of good faith and as an added demonstration of compliance.
As indicated above, when it comes to sentencing on a felony probation violation, the court has a few options. If the accused person is scoring mandatory prison, the violation is technical, and there is sufficient time remaining on probation to complete the remaining conditions, the court can continue the the original term of supervision as if no violation occurred or, as stated above, many add some conditions. Once again, the guidelines will not apply in this scenario unless the court is revoking probation. If the violation of felony probation is technical, and the accused person is not scoring prison time, the court can revoke the original term, and place the accused person on a new term of supervision lieu of a prison sentence (the length of the two terms, when combined, cannot exceed the statutory maximum). Continued supervision, a new term following a revocation, or a termination of supervision is always my goal. Jail or prison is to be avoided at all costs.
In felony cases, the situation is complicated where the accused person violates probation with a new felony charge that is before the court for sentencing. Here, the VOP charge will carry points, the new charge will carry points, and there will be an additional 12 points added for the violation. It doesn't take much to get to 44 in this situation. Where there is a new felony arrest, every conceivable effort must be made by your criminal defense lawyer to prevent the charge from being filed. For additional reading on this topic, see the "Affecting the Filing Decision" section of our website under "Client Solutions". If the sole basis of the violation is a new felony arrest, and the matter is not formally charged, the probation violation will usually be dismissed. If the new charge cannot be outright dropped, your criminal defense lawyer will want to make every effort to get it filed as a misdemeanor or a lesser degree of felony to reduce the overall points. When a client comes to me on a felony probation violation matter, where the basis is a new felony arrest, one of the first things I do is determine the person's guideline score. As a former Pinellas County state prosecutor who handled VOPs for over six years, I have scored many thousands of probation violations and am very familiar with how it is done. If the person is mandatory, I will next determine how the new charge needs to be filed to get the total score below 44 points. Once I have made that determination, I will reach out to the prosecutor assigned to investigate the new felony charge and do all I can to have it filed that way (if not dropped outright). If this can't be accomplished for whatever reason, and the guideline exceeds 44, I will begin looking at bases to "depart" from the low end sentencing guideline range. Guideline departures are very complicated and exceed the scope of this section. For additional reading, the see the "Sentencing" section of our website, and prior related blog posts outlined in the "Resources" section below.
There is no "one side fits all" approach to defending probation violations in Pinellas and Hillsborough counties. Every case is different. Prior records are different. Some prosecutors are easier to work with than others. Each courtroom has its own culture. There are many variables that must be considered in assessing the appropriate course of action. Intelligent planning, and a little grit, will usually go a long way. Questions specific to your probation violation matter, and what defenses may be available, should be directed to an experienced St. Petersburg area criminal lawyer.
2019 Changes to 948.06
In 2019, the Florida legislature amended 948.06(2)(f). In its current form, it is a mandatory mitigation statute and provides that the court shall modify or continue a probationary term, upon finding a probationer in violation, when any of the following applies: (a) the term of supervision is probation; (2) the probationer does not not qualify as a violent felony offender of special concern; (3) the violation is a "low risk technical violation"; and (4) the court has not previously found the probationer in violation of his or her probation, pursuant to a filed violation of probation affidavit during the current term of supervision. A probationer who has successfully completed sanctions through the alternative sanction program is eligible for mandatory modification or continuation of his or her probation. When the court modifies a sentence under these provisions, it may include a maximum of 90 days in the county jail as a condition of probation. Subsection (f) further provides that "notwithstanding section 921.0024 [Florida's criminal punishment code], if the probationer has less than 90 days of supervision remaining on his or her term of probation and meets the criteria for mandatory modification or continuation, the court may revoke probation and sentence the probationer to a maximum of 90 days in the county jail.
Thus, for a first probation violation on a given charge, where the violation does not include the commision of a new offense, and the offender does not qualify as a VFOSC, the court is required to place the person back on supervision. The most that person can receive under these circumstances, in terms of an incarcerative sentence, is 90 days in the county jail. For a person that is otherwise scoring prison time, or where the court is otherwise inclined to impose a prison sentence (or a lengthy jail sentence) for the violation, these amendments are of tremendous benefit. It appears that a person would not qualify for the relief prescribed herein if he or she is on community control, drug offender probation, or another form of supervision that is more restrictive than standard probation.
The legislature also added subsection (9) to 948.06 which, prior to 2019, did not exist.
Resources
The following is a list of outside sources, prior blog posts, and other website sections on topics related to probation and probation violations:
Related sections
- Violent Felony Offenders of Special Concern
- Domestic Violence Offenses
- DUI
- Drug Offenses
- Sex Offenses
Blog Posts
- Do I Need a St. Petersburg Criminal Defense Attorney?
- Florida Sentencing Guideline Departures: Youthful Offenders
- Florida Sentencing Guideline Departures: Unsophisticated/Isolated/Remorse
- Florida Sentencing Guideline Departures: Need For Restitution
- Florida Sentencing Guideline Departures: Legitimate, Uncoerced Plea Bargain
- Florida Sentencing Guideline Departures: Victim as Initiator, Participant, or Provoker of Incident
- Florida Sentencing Guideline Departures: Youth & Inability to Appreciate Consequences
The Bottom Line
Often times, there is much that can be done to mitigate the impact of a probation violation. It usually requires the client getting current on all outstanding obligations, including financial obligations, and effective negotiations on the part of his or her attorney. Having an experienced criminal defense attorney on your side, and particularly one who has handled probation violations for nearly twenty years on both sides of the courtroom, can make a marked difference in the outcome of your case. If you have a pending probation violation in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, or Bradenton, contact The Kilfin Law Firm, P.C. Your initial consultation with Attorney Donald J. Kilfin is always free of charge.
At The Kilfin Law Firm, P.C., we are aware that no two cases are ever the same, which is why we develop an individualized strategy that can help you obtain the resolution you are seeking. We have nearly twenty years of experience handling complex cases, and we are dedicated to providing effective advocacy for our clientèle.
To learn more about your case, or how The Kilfin Law Firm, P.C. can help protect your rights, schedule a free initial consultation with our firm right away.
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