Probation Violation FAQ | Clearwater - Tampa

Typically, individuals charged with a crime may be given a period of probation as an alternative to jail depending on the type and nature of the charge(s). What most people do not realize is that probation violations often will result in a lengthy jail or prison sentence.

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Here are some common questions that our firm receives from clients facing probation violation charges:

What is a technical violation of probation (VOP)?

A technical violation of probation is a violation of conditions of probation other than committing a new law violation. Examples of technical violations are as follow:

  • Failure to submit to a drug test
  • Curfew violation
  • Failure to pay
  • Failure to meet conditions within the time specified

I failed a drug test. Is this a technical violation or a material (serious) violation of probation?

Technically, this is a material violation. Every jurisdiction is unique when dealing with positive drug tests. Some jurisdictions may treat these violations as serious (new law) violations because if you used an illegal drug, you were in possession of that drug. However, because mere drug “use” is rarely if ever prosecuted as an independent drug possession charge, some jurisdictions have treated positive drug tests as technical violations.

Will I go to jail?

Whether you are going to jail will depend on the seriousness of the violation. If you violate probation with a serious violation such as committing a new crime, you may be arrested by law enforcement and taken to jail. However, if your violation is a technical violation, you may just be required to appear in court in lieu of going to jail.

What can I be sentenced to if I violate probation?

You may be sentenced to the maximum amount allowed by law under the original charge you were placed on probation for. For example, if you were placed on probation for a felony sale and possession of cocaine, you originally pled to a second-degree felony and a third-degree felony with a maximum possible punishment of 20 years – five years for the third-degree felony and 15 years for the second-degree felony. Thus, if you violate probation, your maximum possible penalty on the violation is 20 years.

What is a probation modification?

Modification may occur if the defendant moves to modify probation or if the court deems a modification appropriate. If a defendant moves to modify probation and the court grants the defendant's motion, new probationary terms may be ordered. This scenario may occur when an individual has been doing well on probation, has completed the conditions of probation and wants a curfew modification. The courts are more likely to grant a defendant's motion to modify probation if there have been no violations of probation and the defendant is doing well under supervision in the community. Modification may also occur if the defendant violates probation and the court believes that more strict conditions are necessary to encourage a successful probationary term. However, the modifications may be punitive in nature as well. Examples of court modifications are as follows:

  • Extended probationary term
  • Addition of drug or alcohol treatment
  • Standard probation to drug offender probation or community control
  • Addition of a more restrictive curfew
  • Requirement to complete community service hours

How many points will I get for a VOP?

Calculating a score sheet correctly requires a thorough review of the person's criminal history along with an accurate analysis of the current charges and the reason for the violation. You may be assessed anywhere from four to 30 points depending on your record and the violation before the court. Contact our experienced probation violation attorneys today for a free evaluation and score sheet evaluation.

Should I just admit to the violation?

No. The penalties for a felony violation of probation can be harsh. Some people choose to admit to the violation of probation simply to get the case over with. You should know that each time you admit to a violation of probation, you incur points on your score sheet that follow you for years. Your case should be evaluated by an attorney and you should be advised whether you have any defenses.

What is the burden of proof in a violation of probation hearing?

Violations must be intentional and substantial. If the prosecutor cannot prove that your violation was intentional and substantial, you should consider setting your case for an evidentiary hearing. However, the burden of proof is less in a violation hearing than it is in a criminal trial. The burden of proof is a preponderance of the evidence which means “more likely than not.” In deciding whether to contest a violation of probation, it is imperative to consult an attorney who can evaluate the evidence the state has against you, or lack thereof and weigh this with the burden the state must prove the violation. Often, the state attorney is armed with only hearsay. A court may not find you in violation of probation if the only evidence presented by the state attorney is hearsay evidence.

Who supervises felony probation?

Felony probation is supervised by the Florida Department of Corrections.

Can I get a new probation officer?

We get this question a lot. Many people have “issues” with their probation officers. Unless the probation officer has done something inappropriate that can be addressed by his or her supervisor, you are most likely stuck with that officer. If you move, you may be lucky enough to be reassigned to another probation office closer to your new home which would result in a new assignment.

I am going to test positive for drugs, should I skip my probation appointment?

No. You should always keep your appointments as missing an appointment is also considered to be a violation of probation. The court will become more aggravated that you skipped your appointment to avoid a drug test.

I am moving, can I transfer my probation?

If you are moving within the county, there is no need to transfer your probation. If you are moving to another county, you should first consult your probation officer. He or she may advise you that it will be necessary to seek permission from the judge prior to being allowed to transfer your probation.

Can I get a bond if I violate probation?

Maybe. If you have not violated with a new criminal charge, you should be entitled to a bond. However, if you have committed a new crime or it is alleged that you have committed a new crime, the judge may not be inclined to set a bond and is not required to do so. For a full discussion on bonds, see our arrest and bail bonds section.

How can I convince the judge that I deserve a second chance at probation?

Many people do not realize that there are steps you can take to make things better prior to going to court. For example, if you have tested positive for an illegal substance and have been given a court date for some time in the future, you may want to consider increasing your treatment regimen. Often, a judge will look at the proactive measures taken by someone who is in violation status while he or she is waiting on the court date. For more options regarding mitigation prior to court, contact our experienced probation attorneys.

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Powers Sellers & Finkelstein is committed to answering your questions about Criminal Defense law issues in Florida. We offer a free consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.