VIOLATIONS OF PROBATION (VOPs)

Introduction

Florida Statutes Chapter 948defines probation as a form of community supervision that imposes certain terms and conditions on an offender instead of imprisonment.

The Sheriff’s Office supervises misdemeanor probation.The Florida Department of Corrections supervises felony probation.  Violating conditions of probation often has serious implications and may result in the revocation, and subsequent incarceration, of an offender.

What Constitutes a Violation of Probation (VOP)?

Under Florida law, a violation of probation occurs when a defendant willfully and substantially fails to comply with the terms and conditions of his or her probationary sentence.

Whether a violation was both willful and substantial in nature depends on the facts of each individual case and must be proven by the State by the “greater weight of the evidence.”

Here are a few examples of non-willfulviolations:

• Thorpe v. State, 642 So. 2d 629 (Fla. 1st DCA 1994) (stating that “[w]here a probationer has made reasonable efforts to comply with the terms of probation, his or her failure to do so has been held not to be willful”)
• Green v. State, 620 So. 2d 1126 (Fla. 1st DCA 1993) (no willful violation of probation where an unemployed probationer was unable to make restitution)
• White v. State, 619 So. 2d 429, 431 (Fla. 1st DCA), review denied, 626 So.2d 208 (Fla.1993) (no willful violation of probation where a probationer, who failed to perform community service, had reported to the community service work site “many times” but was told that work was not available)
• Rainer v. State, 657 So. 2d 1230, 1230 (Fla. 4th DCA 1995) (failure to complete drug rehabilitation program not shown to be willful where uncontradicted testimony indicated that a mental illness interfered with the defendant’s ability to follow instructions)
• Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980) (no willful violation of condition requiring personal delivery of a report when timely completed report was not delivered because of probationer’s lack of transportation and subsequent incarceration for an unrelated offense)

Violations

Probation can be violated in one of two ways: a technical violation or a substantive violation.

Technical Violations

In analyzing a potential VOP always examine the willfulness of the probationer’s conduct.

Probation violations in Florida fall into one of two categories: technical or willful.

A technical violation occurs when a probationer violates either a specific or general condition of his or her probation. These typically include things like:

• Failure to pay court costs and fines:

• When a probationer fails to pay court costs and/or fines, courtsmust consider the willfulness and the ability of the probationer to pay. The burden falls on the probationer by clear and convincing evidence to prove that he or she is unable to pay.If the court does not find that the probationer has the ability, it cannot violate the probationer. SeeSmith v. State, 892 So.2d 513 (Fla. 1st DCA 2004);Martin v. State, 937 So.2d 714 (Fla. 1st DCA 2006);

• Failure to complete court-ordered programs such as drug rehabilitation or mental-health counseling:

• If the State can establish that the probationer was responsible for failing to complete his or her court-ordered substance abuse program, a probation violation has occurred, and the court may revoke or modify probation.See Grannemann v. State, 85 So.3d 1186 (Fla. 5th DCA 2012)

• However, if the state fails to prescribe a specific time period for entrance into, or completion of, the court-ordered program, a probationer’s failure to enter and complete such a program cannot be the basis for revocation. See Quintero v. State, 902 So.2d 236 (Fla. 2nd DCA 2005)

• Failing a drug test:

• When a probationer fails a drug test, the State must prove that the probationer had an illegal drug in the probationer’s body by substantial competent evidence, a burden most prosecutors underestimate.    A positive drug test, for instance, must be authenticatedby someone with sufficient experience and training in establishing the identity and presence of the identified contrabandin order for the court to admit it at a VOP hearing.  This fact means that in most circumstance the testimony of a probation officer establishing a positive drug result will not suffice, unless the State of Florida has certified the probation officer to administer a drug tests.See Queior v. State, 157 So.3d 370 (Fla. 2d DCA 2015)

• Missing or arriving late to probation-related appointments 

• Again, willfully missing or disregarding an appointment with a probation officer is likely to result in a probationer’s arrest.However, if it is a single, or isolated, instance and the probationer offers a valid explanation to the court, the court is unlikely to view the lapse as willful and substantial noncompliance. See Rodriguez v. State, 768 So.2d 1234 (Fla. 5th DCA 2000)

In each of these scenarios the alleged noncompliance must, again, be willful and substantial for a court to violate one’s probation. Although courts make this determination on a case-by-case basis, any evidence that shows that the noncompliance was due to outside, uncontrollable factors weighs in favor of the probationer. 

Substantive Violations

A substantive violation occurs when a probationer commits a new crime while on probation.

When the state seeks to revoke probation based on the commission of a new offense, it must provide non-hearsay evidence that links the defendant to the commission of the new offense.An arrest alone cannot be the basis of a VOP

Penalties for Violating

If a court revokes probation, it may impose any sentence that it originally could have imposed on the defendant at sentencing.

If a supervising probation officer deems the probationer to have violated probation, he or she will submit to the court either an “Affidavit of Violation” in misdemeanor cases or a “Department of Corrections Violation Report” in felony cases. Both serve as a sworn statement outlining why the officer reasonably believes the probationer to havecommittedthe alleged violation.

The court the reviews the allegations and determines whether or not reasonable grounds exist to issue a capias or warrant for the probationer’s arrest.  It the court issues either a capias or an arrest warrant, and law enforcement arrestthe probationer, the court will hold a hearing to review his or her case. While awaiting this hearing, it is likely that the probationer will be placed on a “no bond” status which requires the probationer to remain in jail until someone – i.e. a criminal defense lawyer – requestsa bond on his or her behalf.

It oftenmakes sense to make an in-court surrender on a VOP warrant.  Doing so can speed up your release should the court issue a bond and/or other terms of release while you await the final VOP hearing. Otherwise, it could be anywhere from two days to weeks until you are brought before the judge.  A seasoned criminal defense lawyer can help you with this step.

Process and Burdens
A VOP hearing differs substantially from a regular criminal trial. First, the evidentiary standard for the State in a VOP hearing falls substantially lower than the “beyond a reasonable doubt” standard applied in criminal trials. The State must prove by the “greater weight of the evidence” that a probationer committed a willful and substantial violation of probation.  This means that it is easier for the State to prove a probationer violated.

In a Final VOP hearing, a defendant may be compelled to testify about probation matters even if such testimony could incriminate the defendant. 

Similarly, hearsay is generally admissible at VOP hearing, but it cannot be the sole basis undergirding a revocation.

Your rights in a VOP hearing are substantially limited as compared to those afforded to you during a typical criminal proceeding.

To ensure that your rights are protected during a VOP proceeding, it is imperative that you contact an experienced VOP attorney.

What Are the Penalties for Violating Probation?

If a judge finds that you committed the violation, the judge has three options. According to section 948.06, Florida Statutes (2018), a judge may:

• Reinstate your Probation;
• Modify your Probation Sentence; or
• Revoke your Probation and Impose jail/prison time.

If your probation is revoked, the judge has the legal authority to impose the maximum sentence for the charge upon which you were originally placed on probation, even if the new sentence is longer than the term included in the original plea bargain, so long as the longer sentence does not exceed the statutory maximum.

Tolling of Probation

Florida Statute § 948.06(1) provides that: “Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary period is tolled until the court enters a ruling on the violation.

What this means is that when a probation officer files either an “Affidavit of Violation” or a “Department of Corrections Violation Report”, the period of probation is put on pause until the court issues its ruling on the violation.  Once the court rules, the probation, if reinstated or modified, resumes. 

If you or someone you know needs help with a probation violation, contact Michael White for a free consultation.