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Can I Modify my Probation?

So, you want to reduce your sentence or modify your sentence? Maybe some conditions aren't appropriate anymore? I want to talk to you about how you can do that.

The first consideration is, you've got to do this within 60 days. If you wait longer than 60 days, the Rule on this, 3.800(c), says you're out of luck. So, the court only has a short two month window to even consider a modification. Keep that in mind.

Second, let's go through a couple of examples, some real life stories of how some folks have gotten their sentences modified--or didn't get their sentence modified. And, we're going to start with State v. Howell. 59 So.3d 301 (Fla. 5th DCA 2011).

Ms. Howell was sentenced here in Orange County to 6 months jail followed by 4 years of probation. She got that through a plea deal where the state agreed to reduce some charges and not take her to trial when she could have gone to prison.

Well, within 60 days she decides that she doesn't like the jail term and doesn't like the 4 years of probation facing her so she goes back to court. The judge actually agrees with Ms. Howell and knocks the jail down to 90 days and knocks the probation down to 18 months probation--from 48 months.

The state goes ballistic, they file an appeal. And on appeal, the state won. Let me tell you why the state won. Because, your plea agreement is like a contract with the state. And what that contract says is "look, we're not going to take you to trial, we're not going to send you to prison if you lose at trial--and you're going to get 6 months jail and 48 months probation in exchange for that agreement." But, you can't come back later and say "Gee, I want something even less." The state will then throw up their hands and say, well, then we want a trial. And, they can get that trial.

So, you can actually withdraw your plea within the 60 days, but the appellate court in Howell said that the judge cannot strike down a plea deal like that. The appellate court reinstated Ms. Howell's 6 month jail sentence and 48 months probation. So that's one example of what you cannot do.

Another way that you might want to ask for a modification, the example I give is State v. Petrae. 35 So.3d 1012 (Fla. 5th DCA 2010). In State v. Petrae, Petrae was convicted of a sex offense that requires him to wear an ankle bracelet, a GPS monitor. He had a 9 year probation sentence with a GPS monitor and about a year into it he figured out what I, and everybody else who is involved in the criminal justice system knows--these GPS monitors are absolutely impossible to live with. You try to work indoors and your ankle is going off and beeping, embarrassingly alerting everybody that you have an ankle monitor.

So, what ends up happening is Petrae goes to court and says "I'm fine with the 9 years probation but judge, will you just remove this ankle monitor?"

The judge agrees and removes the ankle monitor. The state appeals. And, the state wins on appeal. The appellate court says that you've got to put the ankle monitor back on because the ankle monitor is a mandatory part of that particular sex offender's probationary requirements. You cannot change the requirements that the legislature has laid down for somebody who is on sex offender probation--or any other type of probation.

There are certain things that the judge cannot tinker with.

However, you can get reductions under certain circumstances, like, if you were found guilty at trial and the trial judge sentenced you--you can go back to the trial judge within 60 days and ask for something less. There is nothing wrong with that. There is no plea agreement to disturb. There is no contract to disturb. Yes, you can go back and ask.

Bottom line, you ought to get a local attorney that knows that judge and has filed a modification before. If you find somebody who has done it before, especially in front of that judge, no problem, they'll be able to navigate these murky waters. Good Luck.

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