“I Can’t Tell You Why”: The Judge Lottery on Probation Violations

By: John Guidry

After 20+ years of defending criminal cases in Orlando, some questions are more popular than others. The most common? “What is going to happen to me?”

Oddly enough, this is harder to answer on a Violation of Probation (VOP) than on a new charge. Why? Because VOP sentences are the most unpredictable type of sentence out there.

• Courtroom A: The defendant fails a drug test and goes to prison for 3 years.
• Courtroom B: The defendant fails a drug test and gets “reinstated” with a stern warning.

As Timothy B. Schmit sang, “I can’t tell you why.” But, I can tell you what the judge can do, and I can show you a hidden legal weapon that most lawyers (and judges) overlook.

Is your probation officer threatening you with prison?

The PO doesn’t decide the sentence. The Judge does. Call John today at (407) 423-1117.

The Three Options (The “Back to the Future” Rule)

Once a judge finds you guilty of violating probation, they have three options:

1. Revoke Probation This is the “Back to the Future” moment. The judge revokes your probation and can sentence you to any sentence that was available on the day you were first arrested.

• Scary Part: If you are on probation for a crime punishable by 5 years, and you violate on the last day, the judge can revoke you and give you the full 5 years in prison.

2. Modify Probation The judge keeps you out of prison but makes life harder. They might add community service, extend the probation term, or order drug treatment.

3. Continue Probation In my decades of handling VOPs, I have heard a few fair-minded judges say: “I find the Defendant in violation, and I am ordering him to continue his probation with no further sanctions.”

• Translation: “You messed up, but I’m giving you a break.”

The Mind-Blowing Footnote (Savage v. State)

Now, for those of you really into the law—I want to blow your mind. In a footnote to the case Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013), the Appeals Court dropped a bombshell that 99% of judges ignore.

The Quote:

“Because a trial court has discretion to revoke, modify, or continue probation, it seems possible that a factual scenario could arise in which revocation could be an abuse of discretion even where competent substantial evidence supports a finding that the violation was willful and substantial.”

What This Means: Most judges believe that if you violate, they automatically have the power to send you to prison. Wrong. The Appellate Court is saying that even if you are guilty of violating, sending you to prison might be illegal (an abuse of discretion) depending on the facts. Not every violation deserves revocation.

The “NASA” Footnote (DHSMV v. Roberts)

While we are on the subject of judges believing everything they hear, let’s look at my second favorite footnote from DHSMV v. Roberts, 938 So. 2d 513 (Fla. 5th DCA 2006). The issue was whether a police officer’s visual estimate of speed was reliable.

The Quote:

“If this was the vantage point from which the officer claimed to make a capable assessment of speed, he should be working for NASA rather than the highway patrol… Not every ‘observation’ about speed is necessarily one that we should assume is reasonable.”

The Lesson: Just because a cop (or a probation officer) says they saw something, doesn’t mean the judge has to believe it.

John’s 2026 Update: The New “Technical Violation” Rules

Note: In 2026, we don’t just rely on judicial discretion; we rely on the statute.

1. The “Technical Violation” Caps The Florida Legislature finally realized that sending people to prison for missing an appointment is a waste of money.

• The Law: Under updated versions of Florida Statute 948.06, there are now caps on jail time for “Technical Violations” (e.g., failed drug tests, missed curfew, failure to report).
• The Strategy: If your violation is non-criminal, we argue that the judge cannot revoke your probation to prison immediately. They must use the Alternative Sanctioning Program first (usually capped at days in jail, not years).

2. The Body Cam “NASA” Check In Roberts, the court joked about the officer’s eyesight. In 2026, we don’t guess.

• Most probation officers now wear body cams during home checks. If they claim they “saw” alcohol in your home, we pull the footage. If the camera doesn’t show it, the “NASA” footnote applies—we argue the observation is unreliable.

3. Remote Reporting Apps Many counties now use smartphone apps for low-risk probationers.

• The Trap: These apps track your GPS location 24/7.
• The Defense: If the GPS drifts and says you left your house during curfew, we fight it by showing “GPS Drift” data. Just like the Savage case, just because the machine says you violated doesn’t mean it’s true.

Don’t Let Them Revoke You Without a Fight

If you are facing a VOP, do not just walk into court and admit it. The judge has options, and we need to force them to use the one that keeps you home.

Call me at (407) 423-1117. Let’s keep you out of prison.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.