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. That means all fines and court costs must be paid in full (even if these costs are not conditions of probation, Judge’s want everything paid). And, of course, any restitution imposed must be paid in full. So, if all that’s completed, you’re ready to continue reading….
HOW DOES IT WORK?
For those you with early termination provisions built into your plea agreement, never assume the early termination provision is automatic without first consulting an attorney. Typically, once all conditions are completed, either the defendant or Department of Corrections must advise the court that all such conditions have been satisfied and request early termination. Once the court has confirmed that all special conditions have been fulfilled, it may then terminate probation.
If early termination was not mentioned at sentencing, it bears repeating that every probation condition must be complete & paid in full. Then, there’s several other factors to consider before deciding whether or not to hire an attorney for an early termination. Some of these factors are: 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
The first step in evaluating a case for early termination involves a review of the original plea agreement or sentence, even if the defendant does not remember any such terms. The reason is simple, sometimes the actual signed plea agreement contains such language as “State has no objection to early termination of probation“, or “No Early Termination”. This language may not have made it onto the official sentencing document but may have been on the signed plea form, so it’s good to go back to the court file and double check. 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 with proper motion.”
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 ordered that the defendant could not be considered for early termination of probation. Id. The District Court of Appeal held that the trial court was wrong in banning early termination, further stating 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 reasoned 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. This is impermissible.
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.”).
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….