Probation Related Issues
Probation is usually seen by many prosecutors and judges in Southeast Florida as an "alternative" to jail or prison time. However, do not be fooled to believe that just because you have been placed on probation that you have managed to successfully avoid jail or prison. Most individuals who are placed on probation do not fully understand what it is that they are really signing up for by accepting probation.
That is why it is important to consult with and retain quality legal representation. An experienced criminal defense lawyer such as Richard Ansara has the legal skills required to "dissect" your Broward, Miami-Dade, or Palm Beach criminal case in order to achieve the best possible outcome. I understand the importance of making sure my clients understand all of their options - and the pros and cons of each.
A skilled Fort Lauderdale defense lawyer can help with a number of probation-related issues:
- Early Termination of Probation
- Modifications of Probation
- Motion to Travel While on Probation
- Motion to Transfer Probation
The Florida Department of Corrections is responsible for supervising nearly 150,000 offenders every year who are on community supervision, which includes probation, conditional release, controlled release, administrative control, work release and parole. (Although Florida technically doesn’t have parole anymore except for cases dating back to 1983, there has been an increase in parolees in Florida attributable to other states transferring supervision duties).
Community supervision is a type of state supervision that imposes certain conditions on an offender in lieu of incarceration or after release. F.S. 948.001-90 gives Florida judges a great deal of discretion in deciding the terms of community supervision. These can include community service, educational sessions, maintaining contact with probation offices, drug testing or attending drug and alcohol counseling.
In Florida, probation is considered a privilege - not a right. At The Ansara Law Firm, our Fort Lauderdale probation violation lawyers know that when someone fails to abide by specified terms, it can mean big trouble.
When you are first sentenced to probation you will be assigned a probation officer, commonly referred to as a PO. Remember, it is the "job" of your probation officer to violate your probation. They are not your friend nor will they look out for your best interest. In fact, probation officers will often violate you even when they "promise" they won't.
Sanctions for probation violations in Florida can include:
- Judge imposes additional requirements and conditions (i.e., drug testing, more frequent probation meetings, restrictions on where you can go and when);
- Judge extends the length of your probation;
- Another stint in jail or prison.
Some of the most common types of probation violations include:
- New offenses or violations of law;
- Positive drug tests;
- Failure to complete drug treatment programs;
- Failure to complete batterer’s intervention programs;
- Failure to pay fines;
- Associating with persons you are required to avoid;
- Missed appointments or reports.
If your probation officer becomes aware of a violation, he or she will file what is called an “Affidavit of Violation” with the court, and you will be required to appear before a judge to answer to this alleged violation. You might receive a summons or there could be a warrant issued for your arrest.
The affidavit is a sworn statement that details why the officer had reasonable grounds to believe the defendant committed a violation.
Arrests often happen at the defendant’s home or workplace. Probation violation offenses are typically the basis for a NO BOND hold. In other words, you will not be allowed out of jail until you appear before the judge assigned to your division.
At the arraignment on the violation charge, the court will set a date for an evidentiary hearing where the prosecutor will have the burden of proving a violation. If you are convicted of a probation violation the judge has the authority to sentence you up to the maximum term allowable under law. Beware, do not take probation lightly.
It’s best to consult with an experienced probation violation attorney in Fort Lauderdale as soon as you receive notice of the accusation that you violated probation.
The reason for the violation will make a big difference in the action the judge takes. The commission of a new crime is going to be treated differently than being an hour late to an appointment with your probation officer. Nonetheless, remember that the judge has a great deal of discretion. Incarceration is usually always on the table when it comes to the list of penalties for probation violation, so it’s important you make sure your rights are adequately represented.Proving a Probation Violation
In order to establish that you violated your probation, the state will need to prove that your violation was both:
As was outlined in the 1992 Fla. 4th DCA case of Steiner v. State, trial courts can revoke probation or community control if the state can prove by the greater weight of the evidence that a defendant both willfully and substantially violated a specific condition of the sentence.
A determination of whether a violation was substantial and willful is done on a case-by-case basis, and it’s the state that always bears the burden of proof via competent evidence. To give you an idea, in the past, Florida courts have determined that the following were NOT sufficient evidence of a willful and substantial violation:
- Being in close proximity to legal drugs;
- Being arrested without substantive proof that a new offense had been committed;
- Not producing proof of employment or pay stubs (where state failed to prove defendant had not been diligently searching for work);
- Failure to return to the state because his/ her car broke down;
- Not answering the door during a home visit by the probation officer.
F.S. 948.06(3) says that revocation of probation may be appropriate when the defendant violates the order in a “material respect.”
Here again, courts have broad discretion in ascertaining whether there is enough proof of a willful and substantial violation. Courts have held that so long as the defendant makes reasonable efforts to comply with the condition in question, the violation can’t be considered “willful.”
If you have been accused of violating felony or misdemeanor probation in Fort Lauderdale or elsewhere in South Florida, we can help you weigh your legal options.
Contact the experienced Fort Lauderdale criminal defense lawyers at The Ansara Law Firm by calling (954) 761-4011 or toll-free at (954) 761-4011.