People are often happy when they receive probation after a conviction because usually the alternative is jail or prison. Probation allows you to continue working and supporting your family, and remain relatively free. However, it’s important to take a probationary sentence seriously and adhere to all the specific rules, or you could end up going to jail after all if you’re found to have violated your probation. The attorneys at Apfelbaum Law may be able to assist you with matters involving your probation or any other criminal matter.

There are two kinds of probation violations in Florida, substantive and technical. A substantive violation means the probationer has been accused of committing a crime while on probation. A technical violation means the probationer allegedly broke one of the rules of their probation, which vary based on the situation, but usually involve meeting regularly with a probation officer, maintaining a job, submitting to drug and alcohol testing, paying court costs and fees, etc. Other stipulations of probation may include attending meetings or sessions with a drug and alcohol counselor (usually for drug or DUI offenses), taking classes (such as anger management), and making restitution for the crime.

Even a technical violation can end a probationary sentence and result in the probationer serving time, possibly even the remaining maximum sentence for the original offense. If you think you may have an issue with any kind of probation violation, you should consult a Florida probation lawyer as soon as possible.

According to Florida law, a violation of probation occurs when a defendant willfully and substantially fails to comply with the terms and conditions of their probationary term. Whether a violation was both willful and substantial depends on the specifics of each individual case and has to be proven by the State by the “greater weight of the evidence,” which is decided by the Judge. 

Your attorney will advise you on the best strategy if you are charged with a probation violation, but here are some examples of defense strategies you may discuss:

  • Where a probationer has made reasonable efforts to comply with the terms of their probation, a violation cannot be deemed “willful.” If you can demonstrate you made reasonable efforts to comply, you may be able to not be found in violation. For example, if you tried repeatedly to report for community service but were told no work was available, you and your attorney will argue you have made a reasonable effort to comply.
  • If the probationer is unemployed or otherwise not in a financial position to make restitution, you could argue that not paying it isn’t a willful violation. In this case, you may also need to explain your efforts to find employment, and your intentions of making restitution once you are able.
  • You may be able to argue that lack of transportation, illness, a family emergency, or other extenuating circumstances prevented you from meeting with a probation officer or attending a class, so your violation wasn’t willful.
  • In general, if you can make a case that some circumstance beyond your control prevented you from substantially complying, you may be able to argue your failure to comply was not willful.

In substantive violations, the state has to provide direct, non-hearsay evidence linking the defendant to the commission of the new alleged offense. Your attorney may argue there is not enough evidence linking you to the crime the state alleges you committed while on probation. However, keep in mind that a Violation of Probation (VOP) hearing is very different from a regular hearing. The evidentiary standard for the state in a VOP hearing is significantly lower than the “beyond a reasonable doubt” standard we’re all familiar with from typical criminal jury-trials. Unfortunately, that makes it easier for the state to prove its case in a violation of probation proceeding. 

Another challenge of VOP hearings is that you may be forced to testify against yourself, as probation subsequently waives any right against self-incrimination when it comes to probation-related matters. Understand that your rights in a VOP hearing are relatively limited compared to those afforded to you during a typical criminal hearing or trial. You should take care to ensure the rights you do have in a VOP proceeding—including the right to representation—are vigorously advocated by an experienced criminal attorney. The best thing you can do is to acquire the services of an experienced Florida probation violation lawyer.

What Happens If You Are Found Guilty of a Probation Violation?

Three things can happen if you are found to have violated your probation:

    • The judge can reinstate your probation.
    • The judge can modify the terms of your probation, possibly giving you more requirements to meet.
  • The judge can revoke the probationary sentence and impose jail or prison time, up to the maximum sentence for the original offense, minus any “good time” you served on probation.

If you need assistance with your probation violation case, or have questions about any potential legal matter, please contact Apfelbaum Law for a consultation. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida.