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Florida Probation Violation Lawyer

Jim kontos
By James Kontos

Serving Rockledge, Brevard County & Surrounding Areas

Although you may be relieved to get probation in lieu of a jail or prison sentence, probation rules can often be very strict. A single misstep could mean spending your full sentence behind bars. If you’ve been charged with violating probation in Brevard County, it is important that you consult with an experienced Florida probation violation attorney. Criminal defense attorney James Kontos will give you a completely confidential consultation. We will go over your case and discuss the best possible defense strategy.

What is the difference between probation and parole?

Probation is a sentence one serves instead of going to jail. Jail overcrowding is a problem throughout the U.S., including Florida. In an effort to reduce overcrowding, state lawmakers have empowered judges to set probation-only sentences for many non-violent and first-time criminal offenders. This involves someone convicted of a crime adhering to specific guidelines set forth by a judge, and closely monitored by a probation officer, in order to maintain their freedom.

Parole is given to an individual that has been convicted and served at least some portion of their jail sentence. An individual may seek early release based on a number of factors (such as good behavior, restitution, time served, etc.) and take their case before a Parole Board. If granted, they are released early on parole, and must adhere to the same strict guidelines as someone on probation.

What constitutes a Florida probation violation?

When a person receives probation, they agree to adhere to certain rules in order to remain out of jail. Violating these rules can lead to a revocation proceeding, and if your probation is revoked, you’ll usually be required to serve your original sentence. For most, this will mean jail time and additional fines.

Under Florida law, there are two types of probation violations. 

  • TECHNICAL Violation – These can occur when you miss a meeting with your probation officer, fail to pay court costs or fines, fail a drug test, fail to register appropriately, fail to attend any mandated meeting or classes, or change your address without first getting permission. 
  • SUBSTANTIVE Violation – This type of violation occurs when new criminal charges are brought against someone on probation.

While one type may seem more serious, it is important to remember that any violation can result in a revocation of your probation agreement and a potential jail sentence. It is never a good idea to take these charges on by yourself. You have as much right to representation on a probation violation charge as you would any criminal charges. And it is important to note that a probation violation charge in Florida CAN be appealed. The best way of fighting a V.O.P. (violation of probation) charge in Florida is with the help of a skilled criminal defense attorney.  

What happens if you violate probation in Florida?

Not meeting every single term of your agreement can result in a violation and a revocation hearing. Because probation is a privilege, not a right, revocation proceedings aren’t governed by the same laws and legal standards as other criminal matters. If your P.O. (probation officer) feels that you have violated your agreement, they may arrest you at any time, even without an arrest warrant. Your P.O. may need to prove only by a “preponderance” or “greater weight” of the evidence, not “beyond a reasonable doubt,” that you committed a violation. Your probation can be revoked by a judge, who can then require that the maximum sentence for the original charge be imposed.  

If you received a “withholding of adjudication,” meaning that there was no actual conviction on your record, a violation could mean that you lose the withholding of adjudication. Losing a withholding of adjudication sentence will not only mean serving out a sentence for the original charge, but also having the conviction remain on your permanent record unless you are able to have your record expunged after you have completed your sentence.

By law, a violation must be both substantial and willful in order for the state to take action. For example, if your probation terms impose a 9:00 p.m. curfew and you arrive home at 9:02 due to traffic, it’s highly unlikely you’ll be called into court to respond to V.O.P. allegations. The various distinctions of probation violations are exactly why you will want the help of an experienced lawyer. James Kontos can help in determining to what extent a violation occurred, and see that you are given a fair shake in fighting these allegations and retaining your freedom.

What are some common probation violations in Florida?

Although specialized terms may be imposed on some criminal defendants, most probation terms are relatively universal, which means most violations fall into a few distinct categories: 

  • New Offenses and Violations of the Law
    One of the most important conditions of probation is to avoid re-arrest. If you’re arrested on new charges, whether or not they’re related to the charges that put you on probation in the first place, you’ll probably be subject to a VOP proceeding along with (or shortly after) your arraignment on the new charges. One exception to this is if the conduct that resulted in your arrest occurred before the conduct that resulted in your probationary sentence. 
  • Positive Drug Tests
    Most drug- and alcohol-related offenses, like DUI or drug possession, will include random drug testing as a condition of probation. If a drug test turns up positive, the state will need to prove that an illegal substance was present in your body at the time the test was taken.
  • Failure to Complete Required Programs
    Probation agreements often include a requirement that you attend drug treatment programs, counseling, AA, or similar programs. Failure to attend (and complete) these programs can be deemed a willful V.O.P.
  • Failure to Pay Court Costs and Other Obligations
    Defendants who fail to pay restitution, court costs, or other financial obligations that are deemed within their ability to pay may violate their probation. Once the state has established a defendant’s non-payment, the burden of proof is on the defendant to show that he or she is financially unable to complete this portion of the agreement.

What happens when you are charged with violating probation in Florida?

The revocation process differs from a normal criminal trial. Again, a warrant is not needed to arrest you, search your home or vehicle, or drug test you. These are rights you give up when agreeing to probation. In addition, the burden of proof is significantly decreased. A prosecutor does not need to prove a violation ‘beyond a reasonable doubt’, only that some evidence shows a possible violation. For this reason, it is imperative to fight these charges with a Florida attorney that understands the state’s probation laws.

What are the penalties for violating probation in Florida?

The maximum penalty that can be imposed upon a proven V.O.P. is the maximum sentence available for the original charges. This means that if you were convicted of a first-class misdemeanor, punishable by a year in jail, you may be incarcerated until the end of your probation term. Those convicted of felonies could face even longer sentences.

Can an attorney negotiate a probation violation in Florida? 

Oftentimes, yes! Because the state is required to prove any violation was “willful” and “substantial,” there are a number of defenses that may be available. 

If your V.O.P. proceeding involves a positive drug test, the state must prove by competent evidence that the illegal drug was present in your body. The positive drug test alone often isn’t sufficient proof, especially if your attorney can call into question the testing laboratory’s practices or the chain of custody between your probation officer and the testing laboratory.

Another potential defense is that the act leading to your VOP resulted from mental illness. This undermines the “willfulness” finding the state needs to prove its case, as long as you have credible evidence of mental illness. Depending on the severity and scope of the violation, some additional terms may be added to ensure you get the mental health treatment you need before your sentence concludes.

Additionally, a defense can be the “inept or negligent conduct” defense. The willfulness requirement mandates some direct, conscious action, so acts of carelessness—even something as simple as forgetting to set your alarm before a meeting with your probation officer—may be chalked up to simple negligence rather than any deliberate and willful action.

What rights do I have if charged with a V.O.P. in Florida?

Facing a V.O.P. charge in Brevard County or surrounding areas in Florida does not mean you forfeit your basic civil rights. Don’t be intimidated by probation officers or judges!  

You have the right to for your case to be heard by an unbiased judge, meaning that it should never be the same judge that sentenced you in your original charges.

Additionally, you have the right to counsel. Having an experienced lawyer can make all the difference in proving you did not actually violate the terms of your probation, and if you did, that there are acceptable reasons or conditions for doing so that should leave you free from further prosecution.

Contact Kontos Law today for a Confidential Case Evaluation!

If you or a loved one are facing a Florida charge of violating probation, call James Kontos, Criminal Defense Attorney at (321) 242-9777 or request a FREE case evaluation today! We will help you fight these charges and retain your freedom!