Violations of Probation in Florida

Oftentimes, a first-time offender will be placed on probation once he or she has been convicted of a crime. A term of probation can also follow a jail or prison sentence. Probation is not easy and defending an allegation of a violation of probation is difficult. It’s difficult for a number of reasons, to wit:

• the alleged violator is often in jail without a bond;
• there is not a right to have the matter heard before a jury; and
• the State only has to prove a violation by a preponderance of the evidence (it is more likely than not that a violation occurred).

THE HEARING

A probation violation hearing is conducted before a judge who will decide whether a violation occurred. As mentioned above, he only has to find that it occurred by a preponderance of the evidence, which is a much easier burden of proof than beyond a reasonable doubt.

Additionally, the rules of evidence are relaxed in a VOP hearing. This means that hearsay evidence is admissible against the probationer. However, in order for the court to find a violation, there must be some non-hearsay evidence of the violation admitted into evidence.

For example, in State v. Queior, 191 So.3d 388 (Fla. 2016), the Florida Supreme Court held that a probation officer’s testimony that he personally observed a probationer take and fail a field drug test was sufficient for the court to find a violation of probation when corroborated by hearsay evidence of a lab report finding drugs in the probationer’s system. Queior resolved a split in authority amongst the DCAs on this issue.

However, a hearsay statement by a third-party that the alleged violator had changed residences without notifying or the consent of probation was insufficient to support a violation of probation. Vann v. State, 45 Fla.L.Weekly D94a (Fla. 2d DCA 2020). The Court stated:

A trial court’s decision to revoke probation is reviewed for an abuse of discretion. See Savage v. State, 120 So. 3d 619, 623 (Fla. 2d DCA 2013). Competent substantial evidence must support a finding of a willful and substantial violation. Id. Hearsay evidence, by itself, is insufficient to revoke probation. See Gary v. State, 987 So. 2d 180, 181 (Fla. 2d DCA 2008) (holding that hearsay testimony from probationer’s daughter that probationer was no longer living at his approved residence was legally insufficient to support a revocation of probation). Additional nonhearsay evidence is required to establish a willful and substantial violation. See Rowan v. State, 696 So. 2d 842, 843 (Fla. 2d DCA 1997).

Further, in revoking Mr. Vann’s probation, the trial court relied on testimony that Mr. Vann had failed to report to the probation officer. However, “[a] trial court is not permitted to revoke probation on conduct not charged in the affidavit of revocation.” Johnson v. State, 811 So. 2d 749, 750 (Fla. 2d DCA 2002). None of the affidavits filed against Mr. Vann alleged that he had violated this condition of probation.

The hearsay statements of Mr. Vann’s father were legally insufficient to revoke probation. And the State did not claim that Mr. Vann failed to report to his probation officer. Accordingly, we reverse the revocation order and sentence.

THE PENALTIES

A trial court is granted great latitude in disposing of violations of probation. It can simply dismiss the violation, revoke and terminate the probation, modify the probation, reinstate the probation, and sentence the probation to jail or prison up to the statutory maximum for the offense. As such, your attorney must be prepared to present substantial mitigation evidence so that you may achieve the best result possible in your case!

For example, a probationer on probation for dealing in stolen property, a second-degree felony punishable by up to 15 years in prison, faces up to 15 years in prison if the court finds a violation of that probation. Of course, the probationer would receive credit for any time previously served in jail and/or prison.

TOLLING

Also, if your violation of probation is not a new criminal allegation, i.e. a technical violation such as a failed drug screen or failure to pay costs, it is important to note that your probation does not stop or toll simply because an Affidavit of Violation has been filed and a Warrant for arrest issued. In Bethel v. State, 43 Fla. L. Weekly D1918e (Fla. 4th DCA 2018), the Court dismissed a violation of probation for lack of jurisdiction because, even though the Affidavit has been filed three months prior to the expiration of probation, Bethel was not arrested until five months after expiration.

The Court stated that “In Mobley v. State, 197 So. 3d 572, 574 (Fla. 4th DCA 2016), we held that an affidavit of violation of probation alleging only technical violations of probation does not toll the probationary period. Thus, in this case, the circuit court was without jurisdiction to revoke the Defendant’s probation and sentence him based on his alleged technical violations of probation.”

Finally, as the above illustrates, it is vitally important to hire an attorney well-versed in the criminal law arena. Adam L. Bantner, II is one such attorney. Call him today at 813.416.7965 to discuss your case.