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Probation in Florida

entrapment-florida-lawChapter 948.01 allows a state court of competent jurisdiction to place a criminal defendant on probation when sentencing the offender, with or without adjudicating the individual guilty of the crime. Once the criminal defendant is placed on probation, the Florida Department of Corrections then has oversight jurisdiction over the “probationer.” The probationer is required to follow the order of the sentencing court, as to what the probationer must and must not do. Most if not all sentences of probation required that the probationer refrain from the use of illegal drugs and if the probationer was convicted of a substance abuse crime then random drug testing at the probationer’s expense for illegal use of drugs is mandatory.

Another common requirement of probation is that the probationer not violate any new law or commit any new crime, while on probation. The probationer is also many times required to work at a lawful job or to seek employment. The probationer may also be required to fulfill any other lawful orders of the court like paying back restitution to the victim, refraining from contact with the victim, performing community service hours, paying all court cost and fines and any other such requirements that are reasonably related to the crime and pronounced by the sentencing court.

What happens when there is violation of probation in Florida? The correct course of conduct is that a Probation Officer swears out an affidavit for an arrest warrant, as to how and why the probationer violated the terms of their probation. The affidavit is then presented to a judge of competent jurisdiction and the judge signs the warrant for the arrest of the probationer on a violation of probation.  The probationer is then violated through an arrest on a violation of probation. In most criminal violations of probation, the probationer is held “without” bond while their violation of probation is pending.

After a violation of probation if filed and the probationer is arrested, the probationer is provided a first appearance, where the formality of the hearing is to advise the probationer of what the violation is and to advise the probationer of their rights.  The probationer is then sent back to their sentencing judge for final resolution of the violation of probation. The final resolution of the probationer’s violation of probation can occur through a final violation of probation hearing, negotiated settlement with the State or having the violation withdrawn or dismissed by the State.

Many times if the probationer has allegedly committed a “new law violation” or “new crime” while on probation, the state will seek a harsher sentence then what it originally requested at the original sentencing hearing of the probationer.  If the probationer has allegedly committed a technical violation, which is any violation of their sentence other than a new crime violation, then the state may likely ask for re-instatement of the probation with additional terms added to the “new” sentence.  The additional terms can be anything from incarceration or house arrest or additional time added to the probation sentence that is currently remaining. Sometime the state will concede that the violation of probation should be withdrawn. If the violation is withdrawn, then the original sentence imposed is back in affect with all the original sanctions that have been previously announced by the sentencing court.

What is a violation of probation hearing? The violation of probation hearing is an adversarial hearing between the State of Florida and the Probationer. The State has the burden of persuasion and the burden of proof in their attempt to convince a judge that the probationer substantially and willfully violated the terms and condition of their probation, and did so by the great weight weigh of the evidence.  The sentencing judge presides as the fact finder, the trier of fact and applicator of the law. There is no right to a jury trial in a violation of probation. The probationer has a right to call witnesses, cross examine witnesses, and use the subpoena power to bring witnesses to court and to retrieve documents or other tangible papers and documents that are associated with their violation of probation. Hearsay is admissible in a violation of probation hearing, but may not provide the sole basis for revoking a probationer’s community supervision or probation. It is also of great importance that the 4th Amendment of the US Constitution and the exclusionary rule does not apply in a violation of probation hearing see US Supreme Court Ruling of Pa. Bd. of Probation and Parole v. Scott,524 U.S. 357 (1998). Lastly, the probationer may or may not speak on their own behalf during a violation of probation proceeding and is not required to testify at a final hearing.

Facing a violating of probation or community control is a very stressful and concerning matter for a probationer and their family. Again the probation’s liberty, finances, employment and many other rights will be determined again during sentencing, if the allegations of the violation of probation are proven by the State. If you or a loved one is facing a violation of probation then West Palm Beach Criminal Defense Attorney Andrew D. Stine can assist you. For more than a decade, Palm Beach Criminal Defense Lawyer Andrew D. Stine has been assisting those accused of violating probation and community control from their first appearance all the way through a final violation of probation hearing. When you need a compassionate, aggressive criminal attorney in Palm Beach County, FL you need to Hire Stine or you Do the Time.

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