Monday, November 3, 2014

Does the State need more than my PO's statement to Violate my Probation? ~ Best Answer on AVVO ~ Call Michael A. Haber, Esq. @ 1-888-SHARK-8-1

Q:     What are the criteria/requirements for evidence for a violation of probation?  I understand that the standard of evidence is "the preponderance of the evidence", 51%. I also understand that this takes place in front of a judge and not a jury.  However, is a VOP affidavit enough to get probation revoked? In other words, is the sworn statement of a probation officer alleging a violation enough evidence, or does there still need to be some material evidence, a formal statement taken, and so on? Thanks any advice.

A:    Chosen as Best Answer by Asker on AVVO!

Michael Adam Haber


Contributor Level 20


Lawyers agree
Answered The proof presented by the State will depend upon the allegation(s) in the affidavit of probation violation.

For example, if you are accused of violating your probation by committing a technical violation(s) then the State will likely simply call your PO and your PO will testify as to the nature of the technical violation (failure to comply with whatever condition(s) that may apply - maybe failure to attend classes or make payments or move or travel without permission, etc.).

If the violation is based upon a new arrest then the State will bring in the arresting officer or the victim and present evidence that you "failed to remain at liberty" during the probationary period. (Note that they do not have to prove that you are guilty in the new case beyond a reasonable doubt - that is another matter for another hearing / trial - rather, the State merely has to prove that you violated the "do not get arrested" condition of your probation.)

The burden of proof is, as you have correctly identified, "a preponderance of the evidence", and, brutally, unlike in criminal trials hearsay is completely admissible in PVH's (although it cannot be the sole basis for the Court to rely upon in violating you - there must be something above and beyond hearsay), but the State will be required to make a sufficient showing that a) you willfully violated and b) that your violation was substantial ("willful and substantial" are the standards for PVH's in FL).

So, say for instance that you are being violated because of failure to make restitution payments. The State would have to show that you had the ability to pay and chose not to pay, and also that your failure to pay was substantial (if you owed $1,000.00 and had paid $900.00 but not the balance it may or may not be considered "substantial").

Probation is better than incarceration, until you are violated, and then it sucks. Make sure that you are represented by experienced Kissimmee area criminal defense counsel as the same will greatly increase you odds at success.

Although I practice primarily in Miami-Dade County you are welcome to contact my office for a referral or two, or you can do a location search here on Avvo or you can search the Florida Association of Criminal Defense Lawyers website by locality (please see - and click on the "Find A Lawyer" tab).
Wishing you luck and hoping that I have been helpful in answering your question. 

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