Initially, an arrest that results in formal charges by the State attorney must be proved “beyond a reasonable doubt” in order to obtain a conviction. Often, convictions result in a sentence of probation which requires a person to be supervised for a specific period of time and meet additional conditions that can include but are not limited to community service, monthly check-ins, fees, and drug tests. Unfortunately, when a defendant does not comply with their probation terms, a violation of probation also known as VOP is entered against the defendant. When a violation of probation has occurred, the State must meet a lower burden of proof for conviction known as “by a preponderance of the evidence.”
Florida Statute 948.06 provides the laws concerning violations of probation. If you are alleged to have violated a condition of probation, the following generally occurs:
First, your probation officer will submit an affidavit of violation to the court. The affidavit is a sworn statement detailing the willful and substantial ways in which a condition of probation has been violated. A violation can occur in a “material respect” or as a “technical violation.” A material respect violation occurs when a person has been arrested for a new felony, misdemeanor, or criminal traffic offense. Technical violations can include failed drug or alcohol tests, missed appointments with your probation officer, failure to pay fees, and failure to report address or employment changes. After the affidavit of violation is filed, the court will then review it, determine whether reasonable grounds exist, and issue a warrant for arrest or a notice to appear in court with a specified date. At times, a defendant can be placed on a “no bond” status, which will result in the defendant remaining in jail until a bond can be requested. The defendant will afterward be arraigned and scheduled for Pre-Trial hearings. Here, the State will be required to prove a willful and substantial violation.
Violations of probation hearings require the State to meet a lower standard of proof known as “by a preponderance of the evidence” or “greater weight of the evidence.” The State must prove to the court that a person has violated a condition of probation “willfully and substantially.” To meet this standard, the State must present competent evidence that will support a finding of guilt.
An example of a case where the State did not have enough evidence to meet its burden of proof to support a violation of probation is the case of Brown v. State, 813 So. 2d, 203-04 (Fla. 2d DCA 2002). The Defendant, Brown was required to meet a curfew time. On a particular night, her probation officer knocked on the door and Ms. Brown did not answer. Relying on the unanswered home visit, the probation officer submitted a violation of probation affidavit against Ms. Brown. The court ruled there was not enough evidence to support a willful and substantial violation of probation.
A violation of probation must be willful and substantial. In the case against Ms. Brown, the defendant could have been sleeping. The court may have reached a different conclusion if the probation officer provided evidence to show the defendant was violating curfew hours willfully by being somewhere other than her home.
During a case for a violation of probation, a defendant is permitted to present any defenses to argue against the violation. For example, a condition of your probation is to maintain employment and meet curfew hours, and you have complied with this requirement for a period of time. However, your employer changes your work schedule which now conflicts with your curfew hours and an affidavit of violation is filed by your probation officer. You can provide the court with evidence from your employer of your new work schedule hours and request approval to ensure you can comply with your probation and maintain employment.
Should you find that you are facing an arrest, notice to appear, or hearing for violation of probation, it is imperative to speak with an experienced criminal law attorney. Here at Adams & Luka, P.A., we can help determine if you have defenses available to contest the charges against you. Contact us today to schedule a free initial consultation. Our attorneys handle cases in the following counties: Orange, Seminole, Osceola, Lake, Polk, Sumter, and Marion.