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.