VOP-Violation of Probation Proceedings in Florida:
DUI, Misdemeanor, or Felony Supervision
Probation is a form of community supervision requiring specified contacts with parole and probation officers and other terms and conditions as set forth in Florida Statute 948.03. Community control means a form of intensive, supervised custody in the community, including surveillance on weekends and holidays, administered by officers with restricted caseloads; it is an individualized program in which the freedom of an offender is restricted within the community, home, or non institutional residential placement and specific sanctions are imposed and enforced. The terms "probation" and “probationer” when used below are also intended to refer to community control violators and violations.
Affidavit Alleging Violation of Probation and Issuing the Arrest Warrant
Upon receipt of an affidavit alleging specific violations of the terms and conditions of probation, the trial court judge may issue a warrant for arrest or, under limited circumstances, a notice to appear. In most cases, a trial court judge will issue a warrant with no bond because there is no constitutional right to a bond in a violation of probation (“VOP”) case. The trial court judge may issue a cash bond, set a reasonable bond, or even issue a warrant releasing the probationer on his or own recognizance (“ROR”).
Whether the trial court will even consider a bond depends on a variety of factors, including, but not limited to, the nature of the probation violation, recommendations to set a bond by the probation officer and state attorney, and whether the original offense was a violent felony. Once a warrant or notice to appear is issued, or a warrantless arrest for a violation of probation has occurred, the probationary period is tolled (temporarily suspended so that no time is earned for being on probation) until the court enters a ruling on the violation. Violations of any conditions of probation or community control during the tolling period will accrue and probation officers may continue to supervise during this time.
Violation of Probation Hearing
A violation of probation hearing is conducted much differently than a jury trial. First, there is no constitutional right to a trial by jury for one accused of a violating probation. Rather, trial court judges alone preside over VOP hearings at a bench trial, and it is usually the same judge who sentenced the probationer to supervision in the first place. At the VOP hearing, the judge will find that a violation occurred on the showing of clear and convincing evidence, not proof beyond a reasonable doubt.
Most clients are surprised to learn that there is also no right to be presumed innocent. Furthermore, hearsay evidence is admissible in a probation violation hearing, although a violation cannot be upheld where hearsay is the only evidence presented. Finally, because there is no a right to a speedy trial in a violation of probation proceeding, it can take months before a case is heard. If an admission has not been entered to the violation of probation, the probationer will have to remain in custody while waiting for the court to schedule a VOP hearing. Florida Probation Violation Lawyer Brian Toundas expedites this process for his clients without compromising their best interests.
Admitting to a Violation of Probation or Violation at VOP Hearing
After an admission to a violation of probation has been entered by the probationer, or after a hearing where the state has proven by clear and convincing evidence that a willful and material violation occurred, the court may revoke, modify, or continue (reinstate) the probation or community control. If the court revokes probation, the probationer will be adjudicated guilty of the initial offense if he or she had not previously been adjudged guilty. The trial court may then impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control, up to the maximum penalty allowed under the law.
Failure to Pay Costs of Supervision or Restitution during Probation
In any hearing in which the failure of a probationer to pay restitution or the cost of supervision is at issue, the probationer may assert his or her inability to pay restitution or the cost of supervision. It is up to the probationer to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts to acquire the resources to do so. The court may then consider alternate measures of punishment other than imprisonment unless it is inadequate to meet the state's interests in punishment and deterrence. If the state’s interests outweigh the probationer’s duty to pay monetary obligations during probation, the court can order a prison term or community control.
Early Termination of Probation
If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all current and future financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the probation officer may consent to an early termination of probation pursuant to a written motion. At least 50-75% of the supervision period should be completed and consent from the state attorney should be obtained before petitioning the court for an early termination of probation.
Upon the successful termination of the period of probation, or early termination pursuant to court order, the probationer is released from probation and will no longer be liable for sentencing on the underlying offense. Florida Probation Violation Attorney Brian Toundas regularly prepares Motions for Early Termination of Probation and even seeks early terminations of probation after violations have been filed. And when such options are not practically available, he has been extremely successful at diligently preparing his clients and their cases for reinstatements of probation or favorable modifications.