If you believe that your probation officer is going to accuse you of violating your felony or misdemeanor probation, contact an experienced Jacksonville Violation of Probation attorney. The attorneys at Hussein & Webber, PL can defend you during a violation of probation case filed in the Jacksonville area including, Duval County, Clay County, Nassau County, and Northeast Florida.
A violation of probation is a serious matter that should be approached with the utmost caution. There are many ways to violate probation and, if you are found to be in violation of misdemeanor or felony probation, you could receive a substantial jail sentence that is equal to the statutory maximum the trial court might have imposed in your original case.
Definition of Probation
As defined in Chapter 948, Florida Statutes, probation is a type of community supervision requiring an offender to maintain certain contacts with specified officers (i.e. probation, parole, community supervision officers) and to abide by certain terms and conditions as provided by court order. Probation is considered a privilege, not a right, and, according to some Florida Supreme Court case decisions, does not even constitute a formal sentence. State v. Summers, 642 So. 2d 742, 744 (Fla. 1994). Rather, probation is viewed as a “grace” extended by the state “in lieu of a sentence, with its principal function being the rehabilitation of a defendant and the protection of society.” Loeb v. State, 387 So. 2d 433, 436 (Fla. 3d DCA 1980). Because it is a privilege, a trial court has broad discretion to deny probation and impose a jail or prison sentence.
Types of Misdemeanor and Felony Probation Sentences
There are several types of probation sentences, which are used to varying degrees in criminal cases. “Drug offender probation” is a form of intensive supervision that emphasizes treatment of drug offenders in accordance with individualized treatment plans administered by officers with restricted caseloads. “Administrative probation” means a form of non-contact supervision in which an offender who presents a low risk of harm to the community may, upon satisfactory completion of half the term of probation, be transferred by the Department of Corrections to non-reporting status until expiration of the term of supervision. Typically, administrative probation requires a probationer to serve a probation term (and comply with all specified terms and conditions), but he or she is not required to report to a probation officer.
By contrast, “Community control” means a form of intensive, supervised custody in the community, including surveillance on weekends and holidays, administered by officers with restricted caseloads. Community control is an individualized program in which the freedom of an offender is restricted within the community, home, or non-institutional residential placement and specific sanctions are imposed and enforced. Community control is a harsh and more severe sanction than conventional probation due intensive monitoring, reporting, activity restrictions, drug testing, and other rigorous conditions.
When May a Court Impose a Probation Sentence?
Any state court having original jurisdiction of criminal actions may at a time to be determined by the court, with or without an adjudication of the guilt of the defendant, hear and determine the question of the probation of a defendant in a criminal case, except for an offense punishable by death. Thus, with some exceptions and other restrictions, a trial court has broad discretion to place an offender on probation, regardless of the type of offense. However, a municipal ordinance violation is not a criminal offense that can serve as the basis for the imposition of probation. Pridgen v. City of Auburndale, 430 So. 2d 967 (Fla. 2d DCA 1983).
Can a Defendant Be Placed on Probation When Adjudication is Withheld?
Yes. Section 948.01(2), Florida Statutes, authorizes the trial court, in its discretion, to withhold adjudication of guilt where it appears to the court that a defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant to suffer a jail sentence. In felony cases, a probation term must be imposed if adjudication is to be withheld. Where adjudication is withheld in misdemeanor cases, placing the defendant on probation is discretionary with the court. However, a defendant who is placed on probation for a misdemeanor may not be placed under the supervision of the Department of Corrections, unless the circuit court was the court of original jurisdiction.
What are the “Terms and Conditions” of Misdemeanor or Felony Probation?
Terms and conditions of misdemeanor or felony probation are the requirements imposed on a defendant by the trial court as part of the probation term. There are two types of terms and conditions of probation: “general conditions” and “special conditions.”
General conditions of probation are those outlined in the Chapter 948, Florida Statutes, or in applicable Rules of Criminal Procedure. General Conditions do not require oral pronouncement at the time of sentencing and may be considered standard conditions of probation. They may include, but are not limited to: (1) reporting to the probation and parole supervisors as directed, (2) permitting such supervisors to visit him or her at his or her home or elsewhere, (3) working faithfully at suitable employment insofar as may be possible, (4) remaining within a specified place, (5) living without any new violations of the law, (6) paying restitution or reparations, (7) supporting legal dependents, without violating any law, (8) paying debts owed to the state, (9) paying public defender fees, (10) avoiding association with persons engaged in criminal activity, (11) submission to random drug testing, and (12) providing blood or DNA samples to appropriate state agencies.
By contrast, special conditions of probation are those terms and conditions that are not enumerated either in the probation statute or in applicable Rules of Criminal Procedure. Special terms and conditions must be reasonably related to the circumstances of the offense committed and appropriate for the offender. The court must impose the special terms and conditions by oral pronouncement at sentencing and include the terms and conditions in the written sentencing order.
When Can Probation be Violated or Revoked?
Violation or revocation of probation or community control occurs where the defendant commits a willful and substantial violation of the terms and conditions of probation. Thus, there must be a failure of compliance that is significant and done willfully.
Broadly speaking, there are two types of violations: “technical” violations and “substantive” violations. A technical violation of probation is the failure of the probationer to comply with a specific condition listed in the probation order. Examples include failing to pay restitution, failing to pay fines and court costs, failing to perform community service, failing to complete a DUI school, failing to complete a Victim Awareness Program, leaving the jurisdiction, failing to submit to random drug testing, and failing to report to one’s probation officer. By contrast, a substantive violation of probation occurs where the probationer (defendant) commits a new violation of the law, including a felony or misdemeanor criminal offense.
The terms “willful” and “substantial” provide the basis for most violation of probation defenses (although there are a host of other more technical defenses). A probationer who fails to comply with the conditions of his or her supervision despite reasonable or good-faith efforts to comply (i.e. pay fines or court costs) does not violate his or her probation willfully. Technical violations are also not considered substantial or willful violations. A single missed appointment with a probation officer, for example, is not sufficiently substantial to support a finding of a violation.
The trial court may not declare a violation of probation or community control where the conduct forming the basis of the alleged violation occurred before the order of probation was imposed or after the expiration of the probationary period. A court is also prohibited from violating a defendant where the alleged violation is non-compliance with a unilateral condition imposed by a probation officer. However, a defendant can be violated where the condition is a routine supervisory direction by the probation officer, or where the “condition” is a command necessary to carry out a valid court ordered condition of probation.
Note: although there are multiple defenses available to contest a charge of violating probation, a probation hearing must always be approached with caution, as the trial court has broad discretion in determining whether a violation has occurred. Appellate review of the trial court’s findings is extremely limited.
Penalties for Violating Misdemeanor or Felony Probation
Upon the revocation of probation or community control in Jacksonville, the court may impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control. Thus, the defendant may be sentenced up to but not in excess of the statutory maximum.
For example, on a first degree misdemeanor, such as a first time DUI, the statutory maximum penalty is 180 days jail. Ordinarily, an arrest for DUI will be counted as a day served. Assuming the accused posts bond on the day of his arrest, 179 days remain as a potential maximum sentence. Thus, under the facts of this scenario, a violation of DUI probation could result in up to 179 days in jail.
While the above scenario sounds bleak, the trial court has other options at its disposal. The court has the option to reinstate probation or to modify probation, and perhaps impose additional conditions. In cases involving minor technical violations, the court may even allow for more time for the probationer to complete the outstanding conditions with no further penalties. Because the circumstances and possibilities for each violation of probation case can vary widely, a Jacksonville criminal defense attorney is an essential asset in mitigating potential penalties and advising you on the appropriate course of action.
If you have been accused of violating your felony or misdemeanor probation in Jacksonville, Duval County, Clay County, or Nassau County Florida, Hussein & Webber, P.L. can help. Our Jacksonville violation of probation attorney has extensive experience fighting probation violation criminal cases. Call our Jacksonville Criminal Attorney today for a free consultation.