Violation of Probation
Many criminal defendants choose to enter into a probation plea to wrap up their criminal matters. Pleading guilty and being placed on probation is risky. Because a probation plea is a contract between the probationer and the prosecutor. Probation is just that: a contract between the accused and the state. The problem with this type of contract is that only one party is ever responsible for breaching the contract and that is the probationer.
The contract spells out exactly what the probationer needs to complete or refrain from doing in order to have the state uphold its end of the bargain, which is no more than providing the accused with freedom. But with this new found freedom comes many responsibilities. While on probation there are many conditions that the probationer must follow. Some of those conditions include: No Use of Illegal Drugs; No Excessive Use of Alcohol; Reporting Once a Month or more often to Probation; Random Drug Test at the Probationer’s expense; Providing Proof that the Probationer’s Employer is made aware of the crime and the Probation; Pay Back any and all restitution if required; Pay Back Court Costs, Fees and Fines; and many other conditions that the State can tack onto a probation plea. If the probationer violates one of the prior conditions, Probation can file and almost always files a “Violation of Probation.” Violating one of the previous conditions of probation is a technical violation of probation.
There is a second way to violate probation and that is a New Law Violation. A New Law Violation is when the probationer is arrested for committing a new crime while being on probation. New Law Violations more often than not put the probationer at risk of a jail and or prison sentence. New law violations are by far the worst of the two violations that a probationer can be facing.
After a probation officer alleges a violation of probation, the officer seeks an arrest warrant for the probationer. The probation officer seeks this arrest warrant in an affidavit for violation of probation. The affidavit is presented to a sitting judge, more likely than not the judge that sentenced the probationer. The judge reviews the violation and if it is determined by the court, there is probable cause to believe the probationer violated his or her probation, the judge signs the order and executes an arrest warrant for the probationer. Now there is an “Open Warrant” for the probationer’s arrest.
There are two ways to resolve the “open warrant.” Either the probationer turns him or herself into probation to be book at the county jail and likely held no bond or the probationer can contact a Criminal defense Lawyer who can sometimes set a court date to recall the capias or bench warrant in open court to try to avoid the probationer being booked and lodged into the county jail. Is this a guarantee or promise that criminal defense lawyers can make? The answer is no. Some judge’s will not allow a probationer to be brought to open court when there is an arrest warrant for that person. Some judge have standing orders that the probationer must turn themselves into the county jail to be booked and processed or to probation who will relinquish the probationer to the county jail. Either way the probationer goes to jail. So what is next after the violation of probation warrant is recalled by the judge? One of two things happens. Either the probationer pleads guilty to the violation of probation and is sentenced accordingly or the probation pleads not guilty and requests a final hearing.
At the final hearing on a violation of probation the probationer has the following rights: to cross examine witnesses, to call witnesses on behalf of the probationer, to use the compulsory process or subpoena power of the court to get documents or other tangible material in defense of the probationer, to have the state prove its case or burden beyond a preponderance of the evidence that the probationer violated his or her probation, to have the assistance of counsel and many other rights that an experienced criminal; defense lawyer can assist you with.
The final hearing on a violation of probation has lessen standards not only when it comes to the State’s Burden of Proof preponderance of the evidence versus beyond and to the exclusion of every reasonable doubt, which is much higher to obtain, as one is afford in a criminal prosecution. Additionally, the sentencing judge conducts the final hearing and is the trier of fact and law and there are No Rights to a Jury Trial in a violation of probation hearing. Moreover, the rules of evidence are relaxed and do not provided the same deal of protection as the rules do in a criminal prosecution. As a matter of fact, hearsay does come into evidence in a violation of probation hearing as it would not in a criminal trial. But hearsay alone cannot be the basis for the violation of probation. The State and its prosecuting attorney’s rely heavily on hearsay when trying to violate a person’s probation. Hiring an experienced criminal defense lawyer, like West Palm Beach’s Criminal Attorney, Andrew D. Stine can be the difference between you going to jail or getting out during a violation of probation prosecution because Stine is keen to this hearsay trap that prosecutors lay during the final violation of probation hearings.
How does this hearsay stuff come into a final violation of probation hearing? There are too many ways to mention in one criminal blog. But providing general broad stroke example will help you determine if the state will try to pull the hearsay blanket over on your ears or not.
In a violation of probation final hearing, Law Enforcement Officers and Probation Officers will testify. Their testimony will likely include the following types of hearsay: (i) things they told the probationer, (ii) things other people told them about the probationer or (iii) things they found out about probationer. All of the previous mentioned examples are hearsay. An example of each is as follows: (i) don’t break your curfew of 11:00 pm; (ii) my mother told me the probationer punched her in the nose; or (iii) by reading the drug manual or calling poison control, the Law Enforcement Officer determined the pills where oxycodone or roxycodone.
All of the previous statements are hearsay and objectionable. However, in a violation of probation hearing they are admissible, but there is a caveat. The caveat is that the court may not solely base its violation of probation on hearsay alone. Hire only an experienced and seasoned lawyer who knows the law, when you are faced with a violation of probation, the experienced criminal defense lawyer can make the difference between the probationer going to jail or being released back on probation. The proper objections must be made and the persuasive case law must be provided to the judge to ensure the probationer’s rights are protected.
Florida Courts have continuously reasoned that: Hearsay is admissible at a revocation of probation hearing. However, “[t]he law is clear that a person’s probation cannot be revoked solely on the basis of hearsay evidence.” The hearsay must be corroborated by non-hearsay. If the State cannot bring together the evidence then the violation must be dismissed. Hiring an experienced criminal lawyer can help you make the right decisions during a violation of probation. Hiring the lawyer with the most criminal experience in Palm Beach County to defend you in a criminal or violation of probation problem is best left to Attorney Andrew D. Stine. Attorney Stine has over ten years of helping people with their violations of probation. More than 75% of the probation violations that Attorney Stine handles get put back on probation and never face a final violation of probation hearing. But if you or a loved one is facing a final violation of probation hearing or violation of probation in general, then Hire Stine or Do the Time.