Florida Violation of Probation Laws

1. How does a violation of probation case begin in Florida?

   • "Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or community control in a material respect, any law enforcement officer who is aware of the probationary or community control status of the probationer or offender in community control or any probation officer may arrest or request any county or municipal law enforcement officer to arrest such probationer or offender without warrant wherever found and return him or her to the court granting such probation or community control." Section 948.06(1)(a), Florida Statutes.

   • The 3 ways that a Violation of Probation can be initiated are:

     1. Filing of an affidavit alleging a violation and the issuance of a warrant;

     2. Filing of an affidavit alleging a violation & a warrantless probable cause arrest;

     3. Filing of an affidavit alleging a violation & issuance of a notice to appear.

2. Initiation of a Violation of Probation "tolls" the term of probation

   • Upon the filing of an affidavit alleging a violation of probation or community control and following the issuance of a warrant for such violation, a warrantless arrest under this section, or a notice to appear under this section, the probationary term is "tolled" (paused) until the court enters a ruling on the violation. Notwithstanding the tolling of probation, the court shall retain jurisdiction over the offender for any violation of the conditions of probation or community control that is alleged to have occurred during the tolling period. The probation officer is permitted to continue to supervise any offender who remains available to the officer for supervision until the supervision expires pursuant to the order of probation or until the court revokes or terminates probation, whichever comes first. Section 948.06(1)(g), Florida Statutes.

3. Preliminary hearing for a violation of probation (VOP Arraignment)

   • The court, upon the probationer or offender being brought before it, shall advise him or her of such charge of violation and, if such charge is admitted to be true, may forthwith revoke, modify or continue the probation. Section 948.06(2)(a), Florida Statutes.

   • At the first violation of probation hearing, a Defendant can either enter a denial or admission. A "denial" is the equivalent of a not guilty plea, whereas an "admission" is analogous to a guilty plea.

4. How does a violation of probation impact a withhold of adjudication?

   • Following a revocation of probation, the trial court shall adjudicate the defendant guilty of the crime forming the basis of the probation or community control if no such adjudication has been previously made. Rule 3.790(b)(1), Florida Rules of Criminal Procedure.

   • This means that if you received the benefit of a withhold of adjudication as part of your initial sentence, you will lose that and officially be adjudicated guilty if the court revokes your probation.

5. What does a court need to find in order to revoke your probation?

   • For a trial court to revoke probation based on a violation of a condition of probation, the violation of probation must be "willful and substantial." Hightower v. State, 529 So. 2d 726, 727 (Fla. 2nd DCA 1988).

6. Which side carries the burden of proof and what is that burden?

   • The State has the burden of proving by "the greater weight of the evidence" that the probationer's actions amounted to a willful and substantial violation of a condition of probation. Roseboro v. State, 528 So. 2d 499 (Fla. 2nd DCA 1988).

7. Is hearsay evidence admissible in a violation of probation hearing?

   • Yes, hearsay evidence is admissible in a violation of probation hearing to prove a violation, however, hearsay may not form the sole basis for revocation. Russell v. State, 982 So. 2d 642 (Fla. 2008).

8. Can the State call a Defendant to testify as a witness in a violation hearing?

   • Yes, in the context of a violation of probation hearing, the State is permitted to call the probationer as a witness and ask them questions about technical violations. Perry v. State, 778 So. 2d 1072 (Fla. 5th DCA 2001).

   • A probationer may not refuse to answer a question, just because the answer would disclose a probation violation. His or her agreement to accept the terms of probation effectively waives a Fifth Amendment privilege regarding this information. However, that privilege is applicable to conduct and circumstances concerning a separate criminal offense. Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 1147, n. 7, 79 L. Ed. 2d 409 (1984).

9. If I am sentenced for violating probation, am I entitled to all of my jail credit?

   • Yes, A defendant who receives a sentence as a result of a violation of probation is generally entitled to all credit for time served, including time spent in jail awaiting the resolution of the original case; the time served upon his or her original sentence; and the time served in jail pending the outcome of the subsequent probation violation.

     • Barnes v. State, 74 So. 3d 1135, 1136 (Fla. 2nd DCA 2011).

     • Mohammad v. State, 138 So. 3d 1174 (Fla. 3rd DCA 2014).

     • Powell v. State, 763 So. 2d 364, 366 (Fla. 4th DCA 1998).

     • Tomiuk v. State, 663 So. 2d 681 (Fla. 5th DCA 1995).

     • Bowers v. State, 645 So. 2d 1108 (Fla. 1st DCA 1994).

   • Exception: A defendant can waive credit for time served as part of a plea agreement, but such waiver must be clearly shown on the record. Ryan v. State, 837 So. 2d 1075, 1076 (Fla. 3rd DCA 2003).

10. What happens if my jail credit exceeds the maximum sentence allowed by law?

    • Once a defendant has served the statutory maximum penalty for a given charge, the trial court lacks jurisdiction to revoke his probation on the charge and to sentence him further. Knite v. State, 102 So. 3d 691 (Fla. 4th DCA 2012). See also Young v. State, 697 So. 2d 75, 77 (Fla. 1997).

11. Time served must be credited against the probationary term in some cases.

    • When a trial court imposes probation, it must credit jail time against the probationary term if the combined time would exceed the statutory maximum sentence. Triatik v. State, 267 So. 3d 535 (Fla. 1st DCA 2019). See also Grissinger v. State, 905 So. 2d 982 (Fla. 4th DCA 2005) & Baldwin v. State, 558 So. 2d 173 (Fla. 5th DCA 1990).

    • The law is quite clear that when the court imposes a split sentence, the combined period of incarceration and probation may not exceed the statutory maximum. It is also clear that a term of probation is not to exceed the statutory maximum for incarceration, and that offenders sentenced to incarceration must be given credit for time served on their offenses. McCray v. State, 517 So. 2d 770 (Fla. 2nd DCA 1988).

12. If my new criminal charges got dropped, does that mean the violation of probation is automatically dismissed?

    • No, the State's decision to decline to prosecute a new law offense with regards to an individual currently on probation does not bar it from pursuing the violation of probation. State v. Mitchum, 227 So. 3d 697 (Fla. 5th DCA 2017).

13. Can I get a bond if I'm arrested for violating probation?

    • While there is no constitutional right to bail bending a revocation of probation proceeding (Genung v. Nuckolls, 292 So. 2d 587 (Fla. 1974)), the court has discretion to release a defendant with or without bail pending the disposition of a violation of probation. Section 948.06(2)(c), Florida Statutes.

    • A judge cannot simply refuse to even entertain a motion to set bond in a violation of probation case. Jansenson v. Felton, 768 So. 2d 1090 (Fla. 3rd DCA 1995).

14. VOP Defenses: Lack of Jurisdiction.

    • If the probationary period expires prior to the initiation of violation of probation proceedings, the court no longer has jurisdiction to conduct a revocation hearing. Rodriguez v. State, 511 So. 2d 444 (Fla. 2nd DCA 1987).

    • A trial court lacks jurisdiction to revoke probation for violations which occurred during the period of probation unless the revocation process is set in motion during the probationary period. State v. Wimberly, 574 So. 2d 1216 (Fla. 2nd DCA 1991).

15. VOP Defenses: Inability to Pay.

    • A trial court may not revoke or modify a defendant's probation for the failure to pay restitution unless there is evidence of the defendant's ability to pay the restitution, thus establishing that the violation is willful. Robinson v. State, 773 So. 2d 566 (Fla. 2nd DCA 2000).

    • Absent a finding that a defendant has the ability to pay, probation cannot be revoked based on the failure to pay court costs. McPherson v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988).

    • Proving ability to pay is the State's burden and it is error to shift the burden onto the defendant to prove inability to pay. Johnson v. State, 126 So. 3d 1129 (Fla. 4th DCA 2012).

16. VOP Defenses: Allegation Doesn't Constitute a Violation.

    • If an alleged violation pertains to a condition of probation not outlined in Section 948.03 of the Florida Statutes or orally pronounced on the record at time of sentencing, revocation is improper. Hutchinson v. State, 428 So. 2d 739 (Fla. 2nd DCA 1983). See Singletary v. State, 537 So. 2d 674 (Fla. 2nd DCA 1989).

17. VOP Defenses: Violation Not Willful.

    • A defendant's failure to comply with a probation condition is not willful where his or her conduct shows a reasonable, good faith attempt to comply and factors beyond his or her control, rather than a deliberate act of misconduct, caused the noncompliance. Soto v. State, 727 So. 2d 1044, 1046 (Fla. 2nd DCA 1999).

18. VOP Defenses: Violation Not Substantial.

    • For a violation to be "substantial" the State must show that the probationer is unfit for probation.

      • Brown v. State, 86 So. 3d 1125 (Fla. 2nd DCA 2012).

      • Ortiz v. State, 54 So. 3d 1020 (Fla. 2nd DCA 2011).

      • Cruz v. State, 81 So. 3d 501 (Fla. 4th DCA 2012).

      • State v. Carter, 835 So. 2d 259 (Fla. 2002).

19. VOP Defenses: Revocation Cannot be Based Solely on Hearsay.

    • Hearsay evidence is admissible in a VOP hearing to prove a violation, however, hearsay may not form the sole basis for revocation. Russell v. State, 982 So. 2d 642 (Fla. 2008).