Early Termination of Probation

So, you’ve been placed on probation, now you want to be done with it. Don‘t despair, help is on the way, and it’s called a Motion for Early Termination of Probation. But, before even thinking about early termination, please make sure that every single condition of the sentence is satisfied. That means all community service, classes, and any recommended counseling must be completed (Is it even possible to complete sex offender probation?  I've seen it done, but its rare). 

Yes, all fines and court costs must be paid in full (even if these costs are not conditions of probation, Judge’s want everything paid).   Paying off the fines can be especially tough for those with drug trafficking offenses, as these fines start at $50,000.  And, of course, all restitution imposed must be paid in full.   The Florida law that permits early termination can be found in Section 948.05, which states that a "court . . . at any time . . . may discharge [a] probationer or offender in community control from further supervision."

HOW DOES EARLY TERMINATION WORK?

Some judges will tell you something like this: "I'll consider early termination of probation at the half way point if you've completed everything and your probation is in good standing."  The first mistake people make is to assume that early termination is automatic.  It's not.  You should reach out to a local attorney to get the ball rolling on a Motion for Early Termination of Probation.   Second, don't assume that your probation officer is your friend.  Often, probation officers claim that they'll "put in for early termination."  You'll be waiting forever.  The government does nothing quickly, and some judges ignore probation's requests, and wait for a more "official" request that can only come in the form of a motion.

Now, I wouldn't run out and hire an attorney without reviewing a couple of factors: 1) the terms of the plea agreement or sentence, 2) the judge, 3) the probation officer, and 4) the type of charge.

THE TERMS OF THE PLEA OR SENTENCE

To start this process, we need to take a look at the original plea agreement or sentence.  We're looking for language like “State has no objection to early termination of probation“, and we're hoping that we don't see something like "No Early Termination."    Some plea agreements even specify when a probationer may apply for early termination by including such phrases as “May apply for early termination once one half of the probation term is completed, provided all terms and conditions are satisfied”, or “Defendant may apply for early term as soon as restitution is paid in full, with proper motion.”

I've heard quite a few judges hand down sentences that sound like this: "Well, you're getting quite a break here, so I want you to finish all of this probation, I will not consider early termination."  Can a judge ban early termination at the time of sentencing? 

This question was answered in Arriaga v. State, 666 So.2d 949 (Fla. 4th DCA 1996). In Arriaga, the lower court judge sentenced him to probation, further noting that the defendant could not be considered for early termination. Id. The District Court of Appeal held that the judge was wrong in banning early termination, reasoning that the “trial judge is not authorized to divest the Department of Corrections of its authority to recommend early termination of probation.” Id. The court went on to say that “Section 948.05 provides that a probationer may be brought before the court at any time to be ‘admonished or commended,’ and if it is in the best interests of justice and the welfare of society, the probationer may be discharged from further supervision. This provision requires the court to respond to the facts and circumstances that develop during the term of probation. If the probationer has fulfilled his obligations and has been a ‘model probationer’, the interests of justice (not to mention the wise allocation of scarce resources) may require that early termination be considered.” Id. The Arriaga case thus stands for the proposition that courts may not include as a special condition of probation a denial of early termination. Can't do it.

Even though the judge can't prohibit early termination, a defendant can do this to himself by agreeing to "No early term" as a condition of the plea agreement.  So, if you've agreed (via a plea agreement) to "no early term" in your plea agreement, we cannot ask to break this agreement later.  Sorry.

Some crimes have a mandatory term of probation by statute (Battery Domestic Violence, for example). In such cases, probation may not be terminated early without a recommendation from the probation officer (good luck getting a recommendation, they‘re rare these days). These constraints were imposed by our legislature on only a few crimes. In such cases, criminal defense attorney John Guidry sees these potential problems in advance, and at an early stage seeks to have the initial charges reduced from Battery Domestic Violence to simple Battery--because a simple battery charge qualifies for early termination of probation without the need for a probation recommendation.

THE JUDGE MATTERS!

Before filing a Motion for Early Termination of Probation, criminal defense attorney John Guidry will review the preferences of the judge handling the motion. Some judges simply will not grant early terminations based upon a contractual view of plea agreements. These judge’s believe that if a defendant agrees to a certain sentence, they expect the defendant to hold up his end of the bargain, including completing everything he agreed to complete, in the amount of time he agreed to do so. Some judges feel it’s improper to ask the court to alter the agreement later, after all, “A deal’s a deal”. Our law firm‘s position is that it never hurts to ask-- the worst thing a judge can say is “no”. What’s important here is that the client realize his/her chances of success prior to spending hard earned cash on legal fees.

HOW LONG DOES THIS TAKE?

The speed and efficiency of a Motion for Early Termination depends upon both the Judge involved, and the probation officer involved. Probation plays an important role in how quickly an early termination can be granted because most judges will not early term until they’ve heard from probation. When an early term motion is filed, the judge will contact the State and probation, requesting their input. The judge wants to know, directly from probation, whether or not all conditions are completed, and if there are any violations on the horizon (for example, is the probation officer waiting for lab results on a preliminarily positive drug test? If so, the judge may not early term).

In order to speed up this process, it is helpful to obtain a letter from the probation officer verifying that all terms and conditions are completed and paid in full, and that probation is in good standing. Please remember that even if probation recommends early termination (that’s rare, by the way), an early termination is a matter of grace with the court. As such, a judge’s denial of an early termination is cannot be appealed (See Ziegler v. State, 380 So.2d 564 (Fla. 3d DCA 1980) “[s]ince the authority conferred upon the court by Section 948.05 is entirely a matter of grace, we hold that an order denying relief is non-appealable.”  The opposite result was found in Enea v. State, holding that a judge must at least consider early termination on its merits and cannot, as a rule, simply deny such requests. 171 So. 3d 219 (Fla. 5th DCA 2015)).

We recommend that you contact us 6 to 8 weeks prior to the half way point of the probation term. Of course, some cases qualify for termination before the halfway point, so if there’s any doubt about this, simply pick up the phone and criminal defense attorney John Guidry will run thru the options with you. The call is free, of course….

A FINAL BIT OF IRONY

You'd be surprised by the amount of Buyer's Remorse out there on plea deals.  I get tons of calls asking basically the same thing: "Can you reduce my probation?  Can you reduce my work release?  Can you reduce my community service hours?"  The list goes on and on.  An old case answers these questions.  (the answer is yes, maybe)  

A defendant once requested that the judge modify his plea agreement of 6 month work release and 48 months of probation down to 90 days work release and 18 months probation.  State v. Howell, 59 So. 3d 301 (Fla. 5th DCA 2011).  The time limit for a modification of sentence is 60 days, and this request was timely--the judge granted it--but the prosecutor appealed (and won).   Basically, this judge's modification was overturned because a judge may not modify a plea agreement.  However, judges do have the ability to modify the length of probation (only), even if that probation was part of a plea agreement.  The irony here is that Howell could have been granted early termination of his probation at the 18 month mark, but he was not entitled to get his sentenced "modified" to 18 months probation when he was only 60 days into his term.  A similar result was held in State v. Petrae, a case in which the defendant's motion to modify probation by removing electronic monitoring was denied, but the court remarked: "Ironically, it would be within the trial court's discretion to terminate the probation altogether." 35 So. 3d 1012, 1014 n.2 (Fla. 5th DCA 2010).  

The lesson learned here is simple: you need to know what to ask for, when to ask for it, and how to ask for it.  The good news is, you don't even need to know any of this (I'll do it for you).

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