Violation of Probation
VOP|Violation of Probation|Community Control Lawyer
For details on early termination of probation requests, click here.
Are the Violated Conditions "Legal"?
One of the first challenges in a violation of probation case involves the "conditions" themselves. Not every 'condition' imposed by a judge is legal, and some judge's are quite creative in their laundry lists of conditions. A condition of probation must have some rational nexus to the crime committed. For more details on how a judge imposed probation condition can be struck down, check out my article "Just Because a Judge Says So....Doesn't Make It So". Also for your reading pleasure, click on this link to view some of the "standard conditions of probation". The standard conditions of probation need not be mentioned by the judge at sentencing in order for them to be legal. And, sometimes a judge or probation officer may sneak in an extra condition after sentencing. In one case, a judge later added a curfew which, of course, the appeals court struck down this added condition later. For more info, click on my article "Illegal Conditions of Probation Can't Support a VOP".
A violation of a standard condition of probation can still be difficult to prove. For example, the condition that a probationer must not associate with a person engaged in unlawful activities. Do we always know whether or not our friends are doing something unlawful? Did Bernie Madoff's friends know what he was up to? Yet, somehow, this is a standard condition of probation. In one Florida case, a passenger was riding along with a friend, and the friend was pulled over for a traffic citation. [See my article "Hanging with the Wrong Crowd Can Cause a VOP"] The officer discovered that the driver's license had been suspended, so he arrested the driver for driving on a suspended license. And, of course, when it rains it pours. The passenger--who was on probation--was violated for associating with a person engaged in an unlawful activity (driving on a suspended license). Yes, this is kind of ridiculous, but it shouldn't surprise anyone with some connection to the criminal justice system. So, the appeals court eventually overturned the violation of probation in this case, but still, that's not much comfort to the probationer that had to sit in jail on the vop warrant.
If you have been arrested for a probation violation, you could be facing serious consequences, including jail time. The government only has to prove by a preponderance of the evidence, a lower standard than that of a normal criminal trial, that you violated your probation. It is important that you have a lawyer with experience defending clients in these cases.
Dirty urine, or positive drug test violations make up a large percentage of all violations filed, so I've devoted an entire page to it, which you can find by clicking here.
Community control violations
Community control officers perform routine checks of people on probation. They often will stop by your house at a time when you are supposed to be there. You may not even know if an officer drove past your house. Even if you were home and the control officer failed to see you, they will report it as a violation. If you have mistakenly been arrested for violating the terms of your probation, contact our law firm immediately.
As you roam around this website, check out some of the pages devoted to the most common types of probation violations, like positive drug test violations and failure to pay violations. Another common violation is that founded on a new criminal arrest. Most folks just assume that, because they've been arrested on a new charge, they will be found guilty of violating probation. Not so. This is not the law in Florida. As is often cited by our courts, "a mere arrest is obviously insufficient to establish a violation." Person v. State, 83 So.3d 940 (Fla. 3rd DCA 2012). And, of course, you can find an article on this very subject appropriately titled "A New Arrest, By Itself, Is Not Enough to Violate Probation".
Curfew, Out of Area Violations
Of course, there are plenty of cases where people placed on probation do violate the terms of their probation but have a justification for doing so. Thus, the VOP can be beat. For example, on community control, if you are supposed to arrive home at 6:00 and you arrived at 6:20 a control officer will have reported your absence as a violation. The question we ask is, was this a "substantial violation?" If the violation was not substantial, the government cannot sustain a jail sentence. We will fight to get you out of jail as soon as possible. For more info on violations based upon missed appointments, check out my article "Missing a Probation Visit Not Enough to Support a VOP".
How late is too late for a violation of community control or probation? Yes, curfew issues are not just for community control clients, some sex offender probationers have curfews as well. Curfew violations are often difficult to prove, not because probation will have a hard time showing that the person arrived late beyond curfew--but because the violation must be "substantial". Many courts have found that a violation based simply upon a few minutes here or there is not "substantial" enough to warrant a violation. For a deeper analysis of a violation that was overturned because the court found that 30 minutes beyond curfew was not "substantial", read my article "VOP Judge Abuses Discretion".
Credit Time Served on VOP Cases
Another important, but often overlooked aspect of defending a Violation of Probation involves forcing the court to grant the proper credit for time served, especially in cases where jail time is spent on new charges and a VOP. Often times, jail credit may be granted, but only if the probationer was actually arrested for the out of county vop warrant. Unfortunately, the jail systems have become aware of the fact that probationers can obtain credit time served from multiple locations when they served the vop warrant on the inmate--so to get around this, the jail system now issues "detainers" for the out of county inmate. A detainer is simply a fancy word for "hold". Logic would dictate that this sort of behavior has pretty much the same effect as arresting an inmate on the out of county vop warrant--but the courts have not agreed. To counter this view, I would note that when credit time served is denied merely because the local jail delays the execution of the arrest warrant, a probationer can then be entitled to credit time served from the moment the affidavit was served (or, from a reasonable time after warrant was signed). For more information on credit time served issues on VOP charges, check out my article "Orlando Court Forced to Give VOP Credit Time Served". The problem of time served is further complicated by multiple charges (especially a new charge arrest). When arrested on new charges, some jails will simply wait to serve the violation warrant--but that's not necessarily legal. To see the layout of a multiple new charge & vop time served situation, click on my article "Some Judges Don't Give Enough Credit".
Of course, a violation of probation adds points to a defendant's score sheet (on felony cases only). Sometimes, a citizen may not have scored prison when placed on probation, only to be facing mandatory prison time on a violation due to the additional points added. Fortunately, not everyone who scores prison must go to prison. There are plenty of ways to avoid prison, and one of the most common is known as a "downward departure". There are many factors a judge considers when departing from mandatory prison time. For a detailed analysis of a VOP downward departure, check out my article "Good Judges Make the World a Better Place".
Failure to Complete Treatment Violations
A common reason for violating probation is the failure to complete recommended treatment. Treatment comes in many forms--drug treatment, sex offender treatment, domestic violence treatment, anger management, and the list goes on and on. But what happens when your sex offender treatment provider requires that you admit to being a sex offender--and you're not one--what do you do? If you say "I've never done that", you're not fully participating in treatment and you'll be terminated from treatment and thrown in jail on a violation. It's a tough decision, and I address this issue in my article "Lie, or You're Going to Violate Probation". Check it out.
The failure to pay restitution seems to be a recurring theme on VOP's, and it can be a bit more complicated than you would think. So, I've written a whole separate page detailing the analysis of violations on restitution issues. You may access it by clicking here.
If you have been arrested for violating the terms of your probation, contact the law offices of John P. Guidry II, for a free initial consultation. We can be reached by telephone, fax, or by filling out the client intake form on this Web site.E-mail: firstname.lastname@example.org
Aggressive, quality representation since 1993