Gainesville Personal Injury, Divorce and Alimony Attorney

Violation of Probation Substantive Charge Dismissed

A Violation of Probation (VOP) can be either substantive or technical. A substantive violation means a new criminal charge and a technical violation means that a condition has been broken or not followed but there is no new criminal offense. 

A common question is whether the State can maintain the VOP case when a new law violation is alleged and then the new criminal charge is dismissed. In short, the answer is YES. The State of Florida can and does prosecute people for violations of conditions of probation even if the new charge is dismissed. One reason that they can keep the VOP after the new case is dropped is that the standard of proof is different.

In a VOP, the State only has to prove that it is more likely than not that a violation occurred. In a new substantive criminal case, the State has to prove guilt beyond all reasonable doubt. Literally, a defendant could earn a not guilty after jury trial and the State could continue to prosecute the VOP. Although any one prosecutor may choose to not prosecute a VOP if a new alleged offense is not prosecuted, there is no requirement that the probation case be dismissed along with a new charge.

Any violation of probation or criminal accusation is scary and treacherous. Do not walk into court to face the government alone. You have rights, know them and use them. We offer free case evaluations in all criminal matters. To learn more, click, call or fill out the form to the right.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Alternative Sanctions for Technical Violation of Probation

The law applicable to technical violations of probation (VOP) will change, hopefully for the better on July 1, 2016. Florida Statutes section 948.06 will be changed to add new language that allows the Chief Judge of the Circuit in consultation with the State Attorney and Public Defender to create alternative sanctions for alleged technical VOPs. The law does not apply to substantive violations.  (technical v. substantive)

This move will allow for the creation of programs within each circuit. Therefore, what happens in a VOP case will depend on the Circuit in which your case is located. That results or punishments will vary depending on the county and/or circuit should just make clearer the need for local defense counsel.

Of course, the law requires a waiver of all of the probationer’s rights because it requires an admission. A waiver of the right to a defense attorney is required, there is no hearing, there is going to be presumably no record and the admission cannot be used in further violation proceedings. This gigantic removal of cases from the court system will save the State of Florida a lot of money by not having to pay court personnel, and saving time by reducing the caseloads of the State Attorneys and Public Defenders. Presumably, this will also reduce the load on the jails and prisons.

If an offender is alleged to have committed a technical violation of supervision that is eligible for the program, the offender may either waive participation in the alternative sanctioning program, or elect to participate. If the probationer does not participate in this new program, then the probation officer may submit a violation report, affidavit, and warrant to the court. The election is supposed to be made after written notice of the technical violation and a disclosure of the evidence.

This begs the question should you elect the alternative sanctions in a violation of probation? The answer is always going to be it depends. Unfortunately, this seems to be a money saving way to not appoint the Public Defender so many people will be making important decisions about their lives and probation without ever talking to a lawyer. Click, call or fill out the form to get help with the process.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Violation of Probation – When does it end?

In defending violations of probation, a confusing issue for clients is when does the probation period end if there has been a violation affidavit or report filed and a warrant issued, or a warrantless arrest is made, or a notice to appear on the VOP is created. Until recently, the advice by a VOP defense attorney would be that the probationary period is tolled as soon as that warrant is issued, arrest is made or notice is issued. 

In a situation where there is no warrantless arrest or notice to appear both the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period. Recently, a point was made by an appellate court that has changed the once thought of rule that a VOP warrant tolls the period of probation. That Court in analyzing the Florida law that creates the great big pause button in the sky, noted that the statute referenced a specific statute under which the warrant had to be issued in order to toll, stop or pause the clock running on the probation term.

That other statute under which the warrant must be created specifically requires that a judge be satisfied that probable cause exists for the issuance of an arrest warrant for any crime committed. Therefore, the law requires that the warrant be for a crime. Therefore if the warrants issued were for violations of probation based on other technical not substantive violation such as the failure to make restitution payments, failing a drug test, missing a drug screen, failing to pay for a drug test, missing an appointment etc., then these are not crimes. Warrants for technical VOPs are therefore not issued under that specific section of Florida law and the probation is not tolled.  (click for more on technical and substantive violations)

No legal case including a violation of probation should be handled alone.  Please click, call or fill out the form to see how we can help in a horrendous situation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Mobley 4D14-3673 and 4D14-3818

Violation of Probation – First Time Observation

Recently, for the first time in this firm’s history of defending violations of probation, a violation of probation report or affidavit included a speeding ticket as an alleged new law or substantive violation. Then, the judge then issued a warrant with no bond, presumably after reading this report or affidavit of violation of probation. They call it criminal defense practice for a reason, everday there is something new. I’ve been involved in the system since 2001 and this was a new one on me. 

This case was in Ocala, Marion County Florida. There were other technical violations on the report or affidavit submitted by the probation officer. Therefore, it is still true that this writer has never seen anybody violated just for a traffic ticket. All interactions with law enforcement have to be reported to the probation officer supervising the probationer. Failure to report an interaction is considered a violation and warrants have been issued to clients in my violation of probation practice. merely for not reporting an interaction with the cops.  People do a significant amount of prison time as a result of what a VOP attorney should argue are seemingly minor technical violations of probation.

Some people consider probation a trap because of issues like the one that inspired this blog. Having a loved one arrested for a VOP, then finding out the judge issued the warrant with no bond can be extremely scary especially if the incarcerated individual provides significant support to the family or household. Do not go unrepresented thereby letting the government do whatever it wants. Fill out the form, click or call to hire a probation lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Illegal Search of a Probationer at a Traffic Stop

Many criminal  or violation of probation cases start when drugs are found after search at a traffic stop or or other offenses are discovered via the stop such as violation of a curfew or license restriction. This is particularly problematic for people on probation. New criminal law violations are substantive violations, everything else is a technical violation of probation. 

A recent case from the Second District is an example of why a stop for speeding, running a stop sign or other traffic infraction is a problem for probationers. An officer stooped a vehicle for not coming to a complete stop at a stop sign. The officer testified that his standard procedure was to run a license check and a warrants check that informed the cop that the driver was on probation. Being on probation or recently released from jail or prison will normally lead an officer to ask more questions as it did in this case.

The probationer believed that he could not decline the request to search because he was on probation and the officer did not refute  or clarify the misconception. Furthermore, the officer kept the probationer’s license. Keeping a driver’s license and not knowing that he could decline the request for consent to search were important factors to finding the search to be illegal.

A standard condition of probation is that a probationer must answer truthfully and consent to search by his probation officer. Essentially, while on probation, you are stripped on most of your 4th amendment ad 5th amendment rights to your probation officer. This is generally referred to as the probation exception to the warrant requirement. Probation officers may execute warrantless searches of a probationer’s home or workplace. However, this exception, waiver or stripping of rights does not extend to all law enforcement officers.

To support a warrantless search by consent the State has the burden to show that the consent was freely and knowingly made. Officers are not required to advise citizens of the right to refuse consent, however awareness of the right to refuse a search is also important. In addition, a traffic stop must last no longer than the time it takes to write the traffic citation.

All circumstances following the stop have to be taken into account. Whether or not someone has been seized is evaluated by the totality of the circumstances. The totality of the situation should lead to the conclusion that a criminal defense lawyer is needed. The firm’s primary focus is criminal and traffic defense. Click or call to discuss the case in a free consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Villanueva v. State 2D15-1422

Early Termination of Probation in Criminal Cases

One option in Criminal sentencing is probation. Some people are not aware that there is an option to request to terminate or get off of probation early by filing a motion for early termination of probation. A probationer does have to file a written motion in the court and request a court hearing. Most judges will consider the motion to terminate probation early after half the time is served and all conditions are completed. 

A person sentenced to probation usually is ordered to complete conditions of probation.  All standard and special conditions have to be followed. These conditions include drug screens, restrictions on travel, etc.  A person on probation has the hammer of the maximum sentence and likely incarceration hanging over their head. Sometimes people who have no reason to be on probation are then accused of another offense. (Substantive v. Technical Violations). Being on probation makes things worse. A person accused of violating probation is not entitled to a bond while awaiting a hearing and the court can legally sentence the person to the maximum allowed by law.  However, not all violations will disqualify a probationer from applying to terminate probation early.

Being off of probation can be the difference from going to prison or not and being out while awaiting trial or incarcerated instead. Having had clients in those situations inspired this blog. Several times an early termination is granted only find the person arrested within a few months. This means the difference between having a bond and not having a bond. The advice given to clients is simple and consistent. Finish the conditions of probation as soon as possible, borrow money to pay your fines and court costs if necessary because a credit card provider cannot incarcerate anyone, then get off of probation as soon as you can.

For help filing a motion, click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Substantive versus Technical Violation of Probation

What is the difference between a technical and a substantive violation of probation? This is a common question when a family is facing a violation of probation or VOP. There are basically two ways a person can violate probation. One type of probation violation is called substantive and the other is technical.

A substantive violation is when there is an accusation of a new law violation also called a new substantive charge or case. For example, if a DUI defendant had their license suspended at sentencing, then becomes accused of driving in violation of driver license restrictions, or the suspension while on probation for the DUI, will have what is called a substantive violation. This is because there is a new case for a separate criminal violation or offense for knowingly driving on a suspended license.

A technical violation is defined as “not substantive”. Literally, if there is not a new law offense or arrest, then the violation of probation will be classified as a technical violation. For example, the probationer failed to follow the rules of probation. If there is a rule or condition of probation that is broken, such as a missed curfew, missing a class, a dirty urine or failed drug screen, then that will be a technical violation. If the driver’s license is not suspended at sentencing and the probationer is accused of driving, in violation of a special condition of probation, then that would be a technical violation.

The Court can sentence a probationer to the maximum penalty even if the alleged violation is merely a technical. Another common question is “I have a violation of probation but it is just a technical, what can they do to me?”

Any violation of probation is a serious matter. Please click or call today for an initial consultation into your probation matter.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Probation Violation Must Be Willful and Substantial To Revoke Probation

Probation can be revoked upon a finding that a violation is willful and substantial. The State has burden to prove by the greater weight of the evidence that the probation violation is willful and substantial. This standard or burden of proof is also called preponderance or “more likely than not”. 

In a recent case from the Second District, a probationer who at his original sentencing was found to have several mental and emotional deficits, including mental retardation, a limited formal education, and found to be illiterate was accused of violating probation. The probationer was found to have violated his sex offender probation by leaving the county without permission and entering a park where children tend to gather and sentenced to fifty years incarceration in state prison.

At the hearing on the violation of probation, the probationer did not argue the facts of either allegation. Rather, he contended that his violations were not willful. He was cared for by his sister, who took him with her on an errand to visit a sick friend. She did not inform him where they were going, and he never left her sight.

The probationer testified that signs indicating that they were entering a State Park did not alert him that he was in violation of his probation because he cannot read. Although the GPS monitor reports demonstrated that he was in the wrong County for forty minutes, the probationer did not intentionally either leave the County or enter the State Park. The State presented no evidence contest the testimony that his violations were not willful. The Court found that the evidence supported the probationer’s contention that he was not aware that he had left the County and that the State did not meet its burden. Probation was reinstated.

It amazes me that a person who is found to be illiterate and retarded can somehow still be sent to prison for ten years, then expected to follow the written terms of probation. Fortunately, the half century sentence was cut short by the appellate court. This case highlights the importance of presenting evidence and a defense at a violation of probation hearing. It also shows that notwithstanding the fact that a case should be won at trial, anything can and does happen once you litigate your case.

If you or a loved one is accused of violating probation, do not go it alone; click or call to hire a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

I have a violation of probation but it is “just a technical”, what can they do to me?

While the law engenders many questions, one of the most common areas of confusion for probationers is the law on violation of probation or VOPs. Violation of probations can be alleged for either technical or substantive reasons. A new law violation, such as a new charge for possession of marijuana or DUI while on probation, is a substantive violation. Meanwhile, an example of a technical violation of probation would be testing positive for marijuana while on probation or otherwise having a dirty urine or screen. Failure to pay restitution or failing to complete community service hours are other examples of technical violations of probation.

One of the most confusing things for ordinary citizens to understand, is that in a VOP proceeding, the State’s burden is that of preponderance of the evidence and not beyond a reasonable doubt.  More time is spent repeating this than anything else in probation violation cases. An example for preponderance of the evidence standard is to imagine two piles of grains of sand, each with exactly the same amount of grains, then take one grain of sand and remove it from one pile adding it to the other, then the pile with that one additional grain of sand would meet the burden of proof to prove a violation. The standard or burden of proof in a VOP is also referred to as “more likely than not”.

Whether the alleged violation of conditions of probation is technical or substantive, the answer to the question “what can they do?” is the same in Florida. Under current Florida law, a violation of probation is a resentencing and the judge can impose any legal sentence including the statutory maximum. Therefore, if a probationer is on probation for possession of cocaine and screens dirty, then the judge could legally sentence that probationer to five (5) years.

Remember that if your loved one is facing a probation violation; you should not walk into court alone. Please click, call or fill out the form to hire an attorney to help with a VOP.

Gainesville (352) 371-9141

Ocala (352) 694-4529

The law has changed since this was written please see the update.