What is probation?

Probation is a form of community supervision (the law on probation can be found in Chapter 948, Florida Statutes and in and Rule 3.790, Florida Rules of Criminal Procedure). It is an alternative to incarceration (of course it can also be a set up for a quick, tough sentence down the pike) which includes a period of formal supervision which must be served while strictly adhering to stringent terms and conditions. It is available in both county (misdemeanor) and circuit (felony) courts and comes in the following varieties: Administrative (a/k/a "non-reporting"), Reporting (a/k/a "paper"), Drug Offender (a/k/a "urinalysis & AA"), Sex Offender (a/k/a "pretty much your worst nightmare next to prison") and Community Control (a/k/a "house arrest"). They each come with varying degrees of accountability and responsibility but all share two common denominators: Absolute compliance with the terms and conditions is required and zero tolerance is granted.


What is community control ("CC")?

CC is a form of intensive supervised custody in the community. It is an individualized program in which the freedom of an offender is severely restricted and where specific sanctions are imposed and enforced. It is also known as "house arrest" and is the strictest form of community supervision. The terms and conditions of CC are separate and distinct from those of straight probation and are significantly more restrictive and tightly enforced. CC has an incredibly high failure rate. There is "zero tolerance" for violations and the "materiality" component of CC violations is generally held to an appreciably lesser threshold than it is in straight PVHs. (For more on "materiality" see "What is a "material and willful" violation of my probation?" below.)


What are the terms and conditions of probation?

Every probationer in Florida must adhere to the "standard conditions of probation" (see Florida Statute 948.03). The "standard conditions" include such things as unannounced visits by your PO, consenting to searches, not getting arrested (for anything, anywhere), not associating with people who are engaged in criminality, not being anywhere near a firearm or a deadly weapon, random urinalysis, restricted travel, etcetera. In addition to these your Judge is free to make any reasonable non-standard condition a "special condition" of your probation. When setting conditions of probation your Judge should give due consideration to your needs (note: not "wants", "likes", "wishes", "conveniences", "niceities"; rather your "needs") and tailor the terms to accommodate the same. Still, Judge's will routinely amend problematic and reasonably readdressed conditions. An alleged violation of any condition of your probation can result in the issuance of an arrest warrant.


How does my probation get violated?

The procedure for a violation of probation ("VOP") requires that your probation officer ("PO") have reasonable grounds to believe that you violated a material term of your probation. Your PO can either make a warrantless arrest or prepare a sworn document (an affidavit) and to present it to a Judge. The Judge will review the document, and if satisfied, then a warrant will issue. Probation warrants almost universally have a no-bond hold, so if one is issued for you then you will likely be spending some time in custody. If you have any idea (much less know) that a warrant is coming then you should immediately contact a criminal defense attorney and have her/him contact your PO on your behalf. Unfortunately, absent undeniable proof of compliance, statistically speaking you are not likely to dissuade your PO from seeking to violate you, and anything that you say to your PO can and will be used against you in Court. For these and other reasons it is best that you engage a lawyer quickly.


What can I do if I am accused of violating my probation?

In the event of a VOP warrant you have two choices: 1) Wait for the warrant to be served (either by the "warrant squad" or by happenstance, i.e. a traffic stop or at a border) or 2) arrange to "surrender" in Court. Either alternative will result in your incarceration but only in the latter event will it occur on your terms. As almost all VOP warrants have a "no bond" hold self-surrendering almost always has the side benefit of permitting you to argue to the court that, not withstanding the allegations in affidavit your are an otherwise responsible probationer who respects the Court's authority, and this could very well be the difference maker in your securing a probation bond or not. So, and again, .f you have any idea (much less know) that a warrant may be (will be) issued then you should immediately contact an experienced criminal defense attorney, have her/him contact your PO and get working on your behalf.


What is the procedure in a probation violation hearing ("PVH")?

In Florida PVH's are very different than criminal trials. You are not entitled to bond, you are not entitled to a Jury, you are not entitled to have the State prove your guilt beyond a reasonable doubt and the rules of evidence are significantly more lackadaisical in PVH's than in trials (for instance, otherwise inadmissible hearsay is admissible in a PVH). Instead, you are entitled to a hearing in front of a Judge (almost always before the same Judge who sentenced you - who gave you probation instead of incarceration), who determines by a preponderance of the evidence (which is the "civil" standard of proof - i.e. 50.001%) whether or not you "willfully" violated a material provision of your probation. If the Judge finds that you materially and willfully violated then your probation is properly revoked and you can be sentenced to anything from reinstatement to serving whatever incarcerative terms that you could have originally received, minus a credit for the time that you have served.


What is a "material and willful" violation of my probation?

While your PO can allege whatever s/he wants as a violation, and while either a warrantless arrest or an arrest warrant can stem thereto from, the Judge must first lawfully find that you materially and willfully violated your probation before your probation can be revoked and you can be sentenced. While "willfulness" requires a choice / decision / intentional act by the probationer, the issue of "materiality" is more dependent upon the facts and circumstances of a given case. For example, a "substantive" violation (picking up a new criminal charge ) is always going to be a "material" violation whereas many "technical" violations may or may not be depending upon the circumstances. For example, it may or may not be material that you failed to complete all but 5 of 200 conditional community service hours, or it may or may not be material that you missed your curfew by 3 minutes, and so on.


What if I still owe money (restitution or court or probation costs)?

There is no such thing as a "debtor's prison" in the US (or in FL). If monetary conditions are all that are outstanding then the State can try to violate you, but in order for the Judge to do so s/he will first have to determine that you "willfully and substantially" failed to comply with the terms and conditions of your probation. "Willfulness" requires some degree of choice. If you have money and choose to spend it on things other than your Court Ordered obligations then you can be punished; but if you truly do not, and if the State cannot prove that you made such a choice, then you cannot be jailed. The Court can either extend your probation (assuming that there remains time for such an extension), convert your balance to either a criminal order (in the case of restitution) or community service hours (in the case of monies other than restitution) or s/he may be able to waive the costs / fees / fines and simply terminate your probation (successfully or not) as s/he sees fit.


How long does my PO / the State have to violate me?

You can be violated at any time, even one day, before your probationary term naturally expires, and when a VOP is filed your probationary term is formally tolled (suspended / frozen in time). Not only does a VOP toll the probationary term, but there is no statute of limitations on a VOP warrant, and the same can theoretically last forever. There are many examples of VOP warrants being served more than 20 years after they were issued. While such a time lapse may cause the State to have proof problems it will not preclude your arrest, incarceration and detention until a hearing is scheduled and held (which could very well be a while).


How long does it take to get a VOP hearing scheduled?

In the context of PVHs the Rule (3.790(b)(1), Fla.R.Crim.P.) says that in the event of a "denial" the hearing must occur "as soon as practicable" after the initial appearance. However, regardless of the nature of the proceeding Judges schedule hearings as their schedules permit, and in light of the time needed by the parties to properly prepare for the subject hearing. The State is entitled to a reasonable amount of time to gather their evidence, subpoena their witnesses and prepare for hearing. Similarly, the defense is entitled to conduct whatever discovery is prudent under the circumstances so as to provide a meaningful and effective defense to the VOP allegation(s). You are always free to admit the violation and seek a lenient sentence (perhaps reinstatement) but, given the lesser burden of proof, the lax rules of evidence, the wide range of sentencing possibilities and the great sentencing discretion afforded to the Court in VOPs you should fully vet the matter with your lawyer.


How does my probation end and can I early terminate ("ET")?

Probation terminates (ends) in one of two ways: Either the Court formally terminates it (successfully or unsuccessfully) or it naturally expires (the period of supervision simply ends with no violations and no hearing), and in either event once your probation is terminated you are free and clear of State supervision. You are always free to ask the Court to modify or to ET your probation, but the Court is under no obligation to do so. When it comes to ET, the general "rule" is that, absent a prior violation and a contrary sentencing provision (sometimes ET is expressly waived as a condition of getting a probationary sentence), once 50% of the probationary term is successfully completed then the Court will consider granting ET. Although some PO's will chime in on the issue (advising you one way or the other) only the Court can grant ET and your PO has no say in the matter (although the Court is free to ask for her/his input or recommendation).


Where can I find the specific rules and procedures regarding probation in FL?

The law on probation can be found in Chapter 948, Florida Statutes at: http://www.flsenate.gov/Laws/Statutes/2013/Chapter948 Rule 3.790, Florida Rules of Criminal Procedure can be found at: http://www.floridabar.org/TFB/TFBResources.nsf/0/BDFE1551AD291A3F85256B29004BF892/$FILE/Criminal.pdf ). The standard conditions of probation are found at: http://www.flsenate.gov/Laws/Statutes/2013/948.03 The standard conditions of CC are found at: http://www.flsenate.gov/Laws/Statutes/2013/948.101 PVH procedures are found at: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0948/Sections/0948.06.html And, if you want to read a nice Florida Supreme Court case which provides a detailed address of probation in Florida see Lawson v State, 969 So2d 222 (Fla. 2007): http://www.leagle.com/decision/20071191969So2d222_11189


What is the bottom line with probation (Part 1 of 2):

There are a few bottom lines: 1) To survive probation or CC you must be prepared to accept the fact that you are not in control of your life, that you are subject to being told what to do, when to do it and to having your PO / CCO pop in and out with neither warning nor subtlety. In short, you must succumb to the reality that probation is a privilege and that the alternative is incarceration. 2) No matter how difficult it may be, always "yes" your PO to death. If you have a problem with your PO never, ever try to resolve it yourself with your PO; instead call your lawyer and let her / him deal with it for you.


What is the bottom line with probation (Part 2 of 2):

3) Always plan ahead and never rely on excuses (whether they are true or not). If you have a curfew then be home early, period. If you have community service hours or monetary obligations then do the math, calculate the average hours / payments per month and do them. If you want to move, or take a vacation or amend a condition of your probation then call your lawyer and deal with it well in advance of it becoming a violation and seek the Court's (not your PO's) blessing. (And if the Court says, "NO", then deal learn to just with it.) 4) Exercise good judgment and common sense (for instance stay away from folks and places which will endanger you and generally think before you act).

Michael A. Haber, P.A.:   Creative, effective and zealous criminal defense advocacy since 1991.

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