Probation is a sentence in Florida that a judge may impose as an alternative to jail time. If sentenced with probation, you are required to be under supervision by a probation officer or other supervisor and must comply with the conditions the court sets for the length of your probation, e.g. not moving without informing your probation officer, drug testing, being required to find a job. Significantly, probation in Florida is considered a privilege, not a right. As such, if you are accused of violating your probation, you will not be afforded the same rights and protections of a standard trial.
In order to be found guilty of violating your probation, you must be shown to have willfully and substantially violated a certain term of your probation. The court can assign heavy penalties if you are found guilty. If you are accused of, or think you are accused of, violating your probation, it is important to hire an attorney to represent you.
DIFFERENCES FROM A STANDARD TRIAL
Burden of Proof
In a standard trial, the burden of proof is known as the “beyond a reasonable doubt” standard: this means that if the jury can reasonably doubt that you committed the crime for which you are standing trial, then they should not find you guilty. However, in a hearing to determine a violation of probation, the burden of proof rests on the “preponderance of evidence.” The judge only has to consider the evidence and determine whether it is more likely that you are guilty or not (generally speaking). If the evidence indicates that you are likely to have violated probation, the judge can find you guilty.
Because probation is a privilege for a defendant as an alternative to going to jail, your rights are limited in a hearing to determine if you are guilty of violating your probation, in contrast to a standard criminal trial. For one, the judge will typically by default deny bail while you await your hearing; in some circumstances, your lawyer can file a motion to allow for your release upon a bond.
Once you reach the hearing, you are not entitled to a jury of your peers like you are in a trial. Only the judge is considering your case. You can be compelled to testify, as the Fifth Amendment right against self-incrimination does not apply to a hearing for a violation of probation. Also, hearsay is allowed to be introduced as evidence at the hearing—although a finding of guilt cannot be based on hearsay alone.
WILLFUL AND SUBSTANTIAL VIOLATION
A finding of guilt in a violation of probation hearing can only be made if the violation was both willful on the defendant’s part and substantial.
The court must show that your violation of the terms of your probation was willful in order to find you guilty. For example, if you are accused of violating a condition of your probation that states you must seek employment, you can assert in your defense that you made a reasonable effort to comply with this condition. Violations shown to have resulted from negligence or mental incompetence also cannot support a finding of guilt because of a lack of willfulness.
The violation of probation must also be of a substantial nature to support a finding of guilt. For example, if a defendant misses one meeting with the probation officer when he or she has otherwise consistently made such meetings, it will be harder to prove the “substantial” element of a violation of probation.
If you are found guilty of violating your probation, the judge may impose up to the maximum penalty allowable under the original offense for which you received probation. For example, if you’re on probation for a third degree felony, which is punishable by up to 5 years in jail and a $5,000 fine, the judge may sentence you to jail for up to 5 years if you violate the terms of your probation.
This is not the only penalty available. The judge may resort to other options, such as sentencing a longer term of probation, or instituting additional conditions in the terms of the probation.
A skilled lawyer can attack the evidence against you from every angle in order to tarnish its credibility. If there is little evidence against you, the judge is much more likely to rule in your favor.
Lack of Willful or Substantial Violation
A violation of probation has to be both willful and substantial. Therefore, if your lawyer can show that a violation was unintentional or that you put a reasonable effort toward complying with the probation, or if your lawyer can persuade the judge that the violation was trivial, then the court cannot support a finding of a violation of probation.