Criminal Defense
Since 1993
Since 1993
Can the Judge Reinstate Your Probation After a Violation?
By: John Guidry
Here in Orlando, I’m seeing a surge of Violation of Probation (VOP) activity. I can’t explain why—much in the way that some UFO hunters find a rash of sightings in various parts of the country that go unexplained, I’m chalking this one up to that phenomenon as well.
But even without knowing the reasons for this increased level of activity, we need to address a common misconception: The idea that a judge “must” send you to prison if you violate.
One positive thing to keep in mind is that, most of the time, it is possible to reinstate probation after a violation. However, sometimes even judges are mistaken about their own sentencing options.
Facing a VOP in Orlando?
Don’t let the judge believe their hands are tied. Call John today at (407) 423-1117.
The Legal Breakdown: Griffin v. State
A real-life example of judicial confusion can be found in the case of Griffin v. State, 783 So. 2d 337 (Fla. 5th DCA 2001).
- The Situation: Griffin admitted to violating his probation. His underlying offenses were serious: burglary of a dwelling, grand theft, and possession of a firearm by a convicted felon. He had already served 10 years in prison on the case.
- The Mitigation: In a smart sentencing move, Griffin called his mental health counselor. They testified that Griffin had been physically, sexually, and mentally abused as a child. For the first time, he had stuck with counseling for six weeks—a personal record.
- The Error: The sentencing judge sympathized with Griffin but stated he felt his “hands were tied” and that he had no option but to impose a prison sentence. He sentenced Griffin to nine years.
The Appeal: Hats off to the defense attorney who tried to tell the judge he was wrong. The Fifth District Court of Appeal agreed. They overturned the prison sentence because:
“The trial court had the discretion to revoke, modify, or continue Griffin’s probation, contrary to its belief. Based upon the trial court’s apparent misunderstanding of the law, Griffin’s sentence is reversed…”
The Power of Section 948.06(1)
Our legislature often passes laws that hinder a judge’s ability to “do justice” (like the Anti-Murder Act). However, Florida Statute 948.06(1) remains a powerful tool.
Basically, when a defendant is facing a VOP sentence, the court has three main options:
- Revoke: Cancel probation and send you to prison.
- Modify: Keep you on probation but add new conditions (like rehab or more community service).
- Continue: Keep you on probation with the same terms as before.
The judge almost always has the power to modify or continue probation rather than simply shipping a person off to the Department of Corrections.
John’s Takeaways
- Reinstatement is an Option: Probation’s success rate is roughly 65-75%. That means 25-35% of people will face a violation at some point. If you fall into that group, know that reinstatement is legally valid and often the best option for the taxpayer.
- Judges Make Mistakes: Griffin proves that judges don’t always know their own strength. They may think they have to hammer you because of your score sheet or the charges, but the law often gives them discretion. It is my job to remind them of that power.
- Mental Health Matters: Griffin’s commitment to counseling was a key factor. If you violate probation, showing the court that you are addressing the root cause (like trauma or addiction) gives the judge a reason to use their discretion in your favor.
Don’t Accept “Hands Tied” as an Answer
If you are facing a violation of probation, the goal is to keep you out of prison and get you back on track. If the judge thinks they have no choice but to lock you up, we need to show them the law says otherwise.
Call me at (407) 423-1117. Let’s fight for reinstatement.
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.