Can You Go to Prison for Failing a Probation Instruction That Doesn’t Exist?

By: John Guidry

For those of you no longer in school, isn’t it great that we don’t have a test today, or tomorrow? Have you noticed that kids these days are taking way too many tests? Everybody agrees there’s too much testing, but no one does anything about it. Personally, I don’t think kids learn much from it. In law school, we had one exam at the end of each semester. No quizzes. No midterms. One final exam—that’s it.

Finland has the whole “education thing” figured out. Their kids spend very little time in school and zero time on standardized tests until their final year of high school. Yet, they score top marks worldwide. It makes you wonder why we’re so obsessed with testing here.

I remember a “sneaky” test in middle school designed to see if we could follow instructions. The teacher said, “Read all the instructions before writing down your answers.” The very last instruction said, “Don’t write any of your answers on this sheet.” I watched my classmates frantically scribbling away while I sat there, locking eyes with the teacher to say, “I’m with you; I can actually follow the rules.”

This failure to understand the “meaning of words” is exactly why we’re looking at a violation of probation (VOP) case today. We have a probation officer, a prosecutor, and a judge—none of whom could follow simple instructions. It’s a sad but true reality of the justice system.

Facing a VOP in Orlando over a “technicality”? Don’t let a misunderstanding of the rules cost you your freedom. Call John Guidry today at (407) 423-1117.

The Legal Breakdown: The Case of the Missing “Submission” Rule

In the case of Fuentes v. State, 233 So. 3d 1151 (Fla. 3rd DCA 2017), a man on five years of probation found himself facing a staggering twenty-year prison sentence.

His violation was part “substantive” (a new crime) and part “technical.” The technical part involved a special condition: he had to “keep a job application log with a minimum of 5 jobs per week.” This is a common requirement in Orange, Seminole, and Osceola County, even though it’s insane to expect a convicted felon to easily find work while under supervision.

• The Accusation: The probation officer filed a VOP affidavit claiming Fuentes failed to “timely submit weekly job application logs.”
• The Trial Court Error: The judge found Fuentes guilty, agreeing with the PO that because he hadn’t turned the logs in, he was in violation.
• The Language Trap: The prosecutor and the judge both failed the “middle school instruction test.” They added a requirement—submitting the logs—that simply wasn’t in the court’s original order.
• The Result: The appellate court reversed the ruling. They noted that while the order required Fuentes to keep the logs, it never said he had to submit them weekly. A “failure of proof” if I ever saw one.

In 2024 and 2025, Florida has introduced the Alternative Sanctions Program (under F.S. § 948.06) to deal with exactly these kinds of technical issues. Today, in many Central Florida circuits, a minor “log issue” shouldn’t even result in an arrest warrant—it should be handled administratively. If this program had been utilized in the Fuentes case, a twenty-year sentence wouldn’t have even been on the table.

John’s Takeaways

• Words Have Meaning: If your probation order says “keep,” it doesn’t mean “turn in.” We hold the State to the literal language of the judge’s order.
• The “Technical” Trap: Technical violations like missing a log or a curfew can lead to the “max” sentence just as easily as a new crime. You need an attorney who reads the fine print.
• Alternative Sanctions: As of 2025, many technical violations in Orange and Seminole County are eligible for non-judicial sanctions. We always fight to move cases into this program to avoid jail.
• Willfulness is Required: For any VOP to stick, the State must prove you willfully and substantially violated a condition. If the condition wasn’t clear, it can’t be a willful violation.
• Read the Affidavit: The “VOP Affidavit” is the State’s roadmap. If their “war story” doesn’t match the original court order, that is where we win.

The justice system is harsh, and it is a failure of proof when a judge tries to send a man to prison for twenty years for failing to follow a rule that didn’t exist. Whether you are in Orange, Seminole, Osceola, Lake, Brevard, or Volusia County, I’ve been holding the line against these kinds of “blabbing” interpretations of the law since 1993.

If your probation officer is trying to “fail” you on a test you didn’t know you were taking, give me a call. Let’s get the instructions right.

Facing these charges? Call John at (407) 423-1117.

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.