June 24, 2015
Probation is a form of community supervision that requires an offender to keep in contact with a probation officer and obey certain conditions set forth in a court order. Violation of probation occurs when an offender willfully commits a material violation of the conditions of probation. Violation of probation is different from other criminal charges, though it can have the same serious consequences. It requires a lower standard of proof and lacks some procedural protections.
Willful and Substantial
Under Florida law, whenever a law enforcement officer has reasonable grounds to believe that a probationer has violated their terms of probation in a material respect, he or she may arrest or request the arrest of the probationer. The court may only revoke probation if the state shows by the greater weight of the evidence that the offender willfully and substantially violated a specific condition of probation. Offenders charged with violating probation do not have the right to a jury trial. Instead, a judge will determine whether the offense has been committed.
Whether a violation is willful and substantial is a fact-specific issue that the state has the burden of proving. If an offender has made reasonable efforts to comply with a condition of probation, his or her failure to fully comply cannot be considered to be willful.
Types of Violation
There are two types of violation of probation: technical violations and new offenses. A technical violation is the violation of the specific terms of probation listed in the court order of probation. Common technical violations include:
- Positive drug tests
- Failure to complete educational or treatment programs
- Failure to pay fines, court costs, restitution, the costs of supervision, and other fees
- Missed appointments with probation officers
New offenses occur when an offender is on probation and he or she commits a new criminal offense that is considered a violation of the terms of probation. To demonstrate that a probationer has committed a new criminal offense, the prosecution must show direct, non-hearsay evidence that the offender committed the crime. Merely showing that the probationer was arrested for a crime is not sufficient evidence, nor is the testimony of police officers repeating the statements of witnesses.
If an offender is found to have violated probation in Florida, the court may impose any sentence that it could have imposed at the original sentencing. This means that, for violating probation, an offender may receive up to the maximum statutory penalty for the original criminal offense.
For example, the maximum penalty for the possession of up to twenty grams of marijuana is up to one year imprisonment and a fine of up to $1,000. If an offender received probation for marijuana possession, but then violated the terms of probation, the court could then sentence the offender to a fine and a year in jail, even though some of the term of probation has already been completed.
Violation of probation can have very serious effects for what are often seemingly trivial violations. If you have been charged with violating probation, please contact the experienced West Palm Beach criminal defense attorney William Wallshein for a free consultation.