Definition of Probation
As outlined in Chapter 948, Florida Statutes, probation is a form of community supervision requiring an offender to abide by court-ordered terms and conditions in lieu of a sentence of incarceration.
In Florida, probation is considered a privilege, not a right, and, as outlined by the Supreme Court, does not constitute a punitive sentence. State v. Summers, 642 So. 2d 742, 744 (Fla. 1994). Florida appellate courts regard probation as a “grace of the state” imposed “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).
Violations of Probation
A violation of probation occurs where a defendant willfully and substantially fails to comply with terms and conditions of his or her probationary sentence.
Standard of Proof
At hearing, the prosecution must prove by the “greater weight of the evidence” that a defendant committed a violation that was both willful and substantial in nature. Stewart v. State, 926 So. 2d 413, 414 (Fla. 1st DCA 2006); Padelt v. State, 793 So. 2d 30, 31 (Fla. 2d DCA 2001); Reddix v. State, 12 So. 3d 327 (Fla. 4th DCA 2009); Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992).
In meeting this standard, the State must present “competent evidence” sufficient to support a finding of guilt. Stewart, 926 So. 2d at 414. Where the State fails to meet these standards, a trial court may not revoke probation.
- Singleton v. State, 891 So. 2d 1226, 1227-28 (Fla. 2d DCA 2005) (holding that a defendant’s failure to show proof of employment or pay stubs was insufficient to revoke probation in the absence of evidence that the defendant had not diligently looked for work during periods of unemployment);
- Hanania v. State, 855 So. 2d 92, 94 (Fla. 2d DCA 2003) (stating that a defendant’s mere proximity to drugs found in a car where he was passenger was insufficient to support a finding of violation);
- Stevenson v. State, 843 So. 2d 1044 (Fla. 2d DCA 2003) (stating that probation cannot be violated based solely on an arrest);
- Brown v. State, 813 So. 2d 202, 203-04 (Fla. 2d DCA 2002) (stating that a probation officer’s testimony that, on one occasion, he or she knocked on a defendant’s door during a late night home visit and did not receive an answer was insufficient to revoke probation);
- Cito v. State, 721 So. 2d 1192 (Fla. 2d DCA 1998) (reversing a revocation order where the only evidence that a defendant had changed residences without permission was a probation officer’s hearsay testimony repeating statements of the defendant’s mother);
- Knight v. State, 801 So. 2d 160, 161 (Fla. 2d DCA 2001) (reversing order of revocation where, among other factors, the prosecution failed to present evidence that a defendant had the financial ability to pay outstanding court costs).
Violation Must be Substantial and Willful
Florida law provides that a revocation of probation is appropriate when a defendant violates “in a material respect.” Fla. Stat. § 948.06. Appellate courts have further added that “[p]robation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation.” Steiner, 604 So. 2d at 1267 (citing Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978)).
A trial court “has broad discretion to determine whether there has been a willful and substantial violation of a term of probation and whether such a violation has been demonstrated by the greater weight of the evidence.” State v. Carter, 835 So. 2d 259, 262 (Fla. 2002). Whether a violation is willful and substantial must be decided on a case by case basis. Id. at 261.
Numerous Florida appellate court decisions illustrate the application of the “substantial and willful” standard in probation proceedings.
- Thorpe v. State, 642 So. 2d 629 (Fla. 1st DCA 1994) (stating that “[w]here a probationer has made reasonable efforts to comply with the terms of probation, his or her failure to do so has been held not to be willful”);
- Green v. State, 620 So. 2d 1126 (Fla. 1st DCA 1993) (no willful violation of probation where an unemployed probationer was unable to make restitution);
- Gibbs v. State, 609 So. 2d 76, 79 (Fla. 1st DCA 1992) (reversing revocation of probation where a defendant was disenrolled from a drug treatment program as result of disruptive behavior caused by addiction symptoms the program was designed to address);
- White v. State, 619 So. 2d 429, 431 (Fla. 1st DCA), review denied, 626 So.2d 208 (Fla.1993) (no willful violation of probation where a probationer, who failed to perform community service, had reported to the community service work site “many times” but was told that work was not available);
- Rainer v. State, 657 So. 2d 1230, 1230 (Fla. 4th DCA 1995) (failure to complete drug rehabilitation program not shown to be willful where uncontradicted testimony indicated that a mental illness interfered with the defendant’s ability to follow instructions);
- Drayton v. State, 490 So. 2d 229, 230 (Fla. 2d DCA 1986) (error to revoke probation where there was “no evidence from which the trial court could properly conclude that appellant had the ability to file the monthly report but willfully failed to do so”);
- Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980) (no willful violation of condition requiring personal delivery of a report when timely completed report was not delivered because of probationer’s lack of transportation and subsequent incarceration for an unrelated offense);
- Young v. State, 566 So. 2d 69 (Fla. 2d DCA 1990) (reversing revocation of probation where a defendant, after being terminated from a sex offender rehabilitation program, attempted to re-enroll with adequate time remaining in the probation term);
Where a defendant makes reasonable efforts to comply with a condition of probation, a violation cannot be deemed “willful.” Jacobsen v. State, 536 So. 2d 373 (Fla. 2d DCA 1988) (defendant’s failure to leave county by a specified time not grounds for revocation when he made reasonable efforts to comply); Gardner v. State, 365 So. 2d 1053 (Fla. 4th DCA 1978) (no willful violation of condition that a defendant leave Florida proven because his car broke down).
Common Types of Violations
In Florida, the vast majority of probation violations originate from a few common factual scenarios. These scenarios include new criminal offenses, failed drug tests, failure to meet financial obligations, failure to complete court-ordered programs, and missed appointments.
New Offenses / Law Violations
Where the State seeks to revoke probation based on the commission of a new offense, it must present direct, non-hearsay evidence linking the defendant to the commission of the offense at issue. State v. Melton, 65 So. 3d 96, 97 (Fla. 1st DCA 2011); Johnson v. State, 962 So. 2d 394, 396–97 (Fla. 2d DCA 2007); Blair v. State, 805 So. 2d 873, 876-77 (Fla. 2d DCA 2001).
Thus, when the only evidence linking a probationer to a new grand theft offense is hearsay testimony from police officers repeating the statements of alleged theft victims, the prosecution fails to present legally sufficient evidence to support a revocation of probation. Johnson, 962 So. 2d at 398.
Arrest alone is not an adequate basis for finding a violation of probation. Ontiveros v. State, 746 So. 2d 1174, 1174 (Fla. 2d DCA 1999). Moreover, no violation can be found where the offense complained of occurred prior to the defendant being placed on probation by the judgment and sentence. Nelson v. State, 802 So. 2d 470 (Fla. 2d DCA 2001).
Positive Drug Tests
In violation cases involving positive drug tests, the State has the burden of proving by substantial, competent evidence that an illegal drug was present in a defendant’s body. This burden is often underestimated by prosecutors.
Although “[p]roof of the identification of contraband does not require scientific tests … it must be reliable and based on the observations of a witness with experience and training.” Weaver v. State, 543 So. 2d 443, 444 (Fla. 3d DCA 1989).
In practice, this means that the prosecution cannot simply present the testimony of a probation officer (who has no scientific expertise or expert knowledge) to establish a positive drug result. Bray v. State, 75 So. 3d 749 (Fla. 1st DCA 2011). A violation also cannot be based solely on a probation officer’s testimony regarding laboratory results. Starling v. State, 110 So. 3d 542 (Fla. 1st DCA 2013).
Numerous Florida Appellate decisions demonstrate the technical requirements for proving a positive drug result in the context of a probation revocation proceeding:
- Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989) (reversing a revocation of probation where the only non-hearsay evidence the prosecution used to prove a substance was heroin was the testimony of the agent who conducted a field test. The agent could not remember the name of the field test and did not know whether the test was reliable, and could not say, independently of the test, whether the substance was heroin);
- Bray v. State, 75 So. 3d 749 (Fla. 1st DCA 2011) (reversing a revocation of probation where the finding of violation was based on hearsay testimony of two probation officers regarding positive lab results obtained from a defendant’s urine sample. Although both officers testified that they had conducted hundreds of urinalyses, neither testified as to any expertise as to narcotics or drug testing);
- Carter v. State, 82 So. 3d 993, 995 (Fla. 1st DCA 2011) (holding that a field test alone was not competent evidence of drug use when the officer performing the test did not know the name of the test or how it worked scientifically, and he acknowledged that the test had been inaccurate on a prior occasion);
- Queior v. State, 157 So. 3d 370, 375-76 (Fla. 2d DCA 2015) (reversing a revocation of probation based on a positive drug field test where the only evidence used to prove the substance was oxycodone was the testimony of a probation officer regarding the functioning of a drug test strip. The officer had no knowledge of the nature of the chemical reactions that provided the results, and could not explain the scientific basis for the field test);
- Starling v. State, 110 So. 3d 542 (Fla. 1st DCA 2013) (reversing a revocation of probation based on a drug possession violation where the only evidence presented by the State was a probation officer’s testimony that he obtained a urine sample from the defendant, and that the sample “field tested positive for cocaine and came back confirmed on December 24th, from Kroll Laboratories that it was positive for cocaine”);
A trial may revoke probation based solely on the testimony of a probation officer regarding a positive drug result where the officer is certified by the State to administer such tests. Terry v. State, 777 So. 2d 1093 (Fla. 5th DCA 2001) (affirming a revocation of probation where the officer testified as to the nature of the field test, how it was performed, his frequent administrations of the test, and the fact that he was certified by the State to administer the test).
Failures to Complete Drug Treatment Programs
In the context of failure to complete a substance abuse program, the failure is a willful violation if the failure can be shown to be the fault of the accused. Rubio v. State, 824 So. 2d 1020, 1021-22 (Fla. 5th DCA 2002); Curry v. State, 379 So. 2d 140, 141 (Fla. 4th DCA 1980) (stating that “when a defendant’s probation is sought to be revoked because of his failure to successfully complete a designated rehabilitation program, some evidence must be submitted to show that the defendant was in some manner responsible for such failure”).
Moreover, a defendant’s failure to enter and complete a drug treatment program cannot serve as a basis for revocation when the probation order does not prescribe a period of time for entrance or completion. Wilkerson v. State, 884 So. 2d 153 (Fla. 2d DCA 2004). Thus, a finding of violation will not stand if sufficient time remains within the probationary period for completion of the program. Yates v. State, 909 So. 2d 974 (Fla. 2d DCA 2005).
Failure to Pay Financial Obligations
Non-payment of court costs, restitution, costs of supervision, fines, costs of drug testing, and other fees is another common basis for violating probation in Florida. This naturally raises the issue of willfulness and the defendant’s ability to pay.
Under Section 948.06(5), Florida Statutes, the burden is on the probationer to prove by clear and convincing evidence his inability to pay, once non-payment has been established.
This statute does not, however, relieve the trial court of its obligation to make a finding that the probationer has the ability to pay. Martin v. State, 937 So. 2d 714, 715-16 (Fla. 1st DCA 2006); Smith v. State, 892 So. 2d 513, 514 (Fla. 1st DCA 2004) (reversing an order revoking community control because, “[t]he court did not . . . find either orally or in its written order that appellant had the ability to pay”).
Thus, revoking probation for failure to pay costs without a finding that the probationer had the ability to pay requires reversal. Stephens v. State, 630 So. 2d 1090, 1091 (Fla.1994) (holding that, before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.); Whidden v. State, 701 So. 2d 1224, 1225 (Fla. 1st DCA 1997).
Acts Resulting from Mental Illness
Where a violation of probation stems from a defendant’s mental illness, such a scenario will not support a finding of “willfulness” for purposes revoking probation. Thus, where the only doctor testifying at a defendant’s violation of probation hearing states that a defendant is a paranoid schizophrenic, and that the violation resulted from delusions, the court errs in finding the violation “willful.” Copeland v. State, 864 So. 2d 1197 (Fla. 1st DCA 2004).
Acts Resulting from Negligence or Ineptitude
Inept or negligent conduct by a defendant cannot, by itself, support the “willfulness” prong required to make a finding of violation of probation. Cranz v. State, 854 So. 2d 843 (Fla. 3d DCA 2003).
In McCray v. State, 754 So. 2d 776 (Fla. 3d DCA 2000), a defendant was required to be home from work by 8:30 p.m. or to telephone his community control officer to explain his absence. The defendant was then violated when he did not report home due to car trouble.
On these facts, the Third District Court of Appeal held that the defendant’s failure to keep sufficient funds on hand to enable him to make an emergency telephone call, or his failure to have the presence of mind to attempt to contact his community control officer through a family member, was mere negligence or inept conduct, and was insufficient to demonstrate a willful violation. Id. at 778.
Missed Appointments or Reports
A single missed appointment with a probation officer, where a valid explanation is proffered, is insufficient to demonstrate willful and substantial noncompliance with probation. Rodriguez v. State, 768 So. 2d 1234 (Fla. 5th DCA 2000); Washington v. State, 667 So. 2d 255 (Fla. 1st DCA 1995) (single missed counseling session); Bingham v. State, 655 So. 2d 1186 (Fla. 1st DCA 1995) (a single missed meeting of sex offender group counseling).
Similarly, the failure to file one monthly report, having reported prior to and subsequent to that date, does not constitute a willful and substantial violation of the terms of appellant’s probation. Moore v. State, 632 So. 2d 199, 199 (Fla. 1st DCA 1994); Williams v. State, 896 So. 2d 805 (Fla. 4th DCA 2005).
However, if the State proves through substantial competent evidence, that the failure was willful, a finding of violation will be sustained. State vs. Carter, 835 So. 2d 259, 261 (Fla. 2002).
Penalties for Violating Probation
Upon the revocation of probation or community control in Florida, the court may impose any sentence which it might have originally imposed on the offender at sentencing. Thus, the defendant may be sentenced up to but not in excess of the statutory maximum penalty for the original offense at issue.
Once a defendant is deemed to have violated probation, his or her supervising officer will submit to the court an Affidavit of Violation and, in felony cases, a Department of Corrections Violation Report. The affdavit is a sworn statement outlining why the officer has reasonable grounds to believe the defendant committed the subject violation.
Upon receipt of the affidavit, the presiding court will review the allegations, determine whether reasonable grounds exist, and issue a capias or Warrant for the defendant’s arrest. Often, the defendant will be placed on a “no bond” status, which, in the absence of an intervening motion, will require him or her to remain in jail until bond can be requested.
The defendant will then be arraigned on the violation charge and eventually be set for an evidentiary hearing where the prosecution bears the burden of proving a willful and substantial violation of supervision by competent evidence. Thompson v. State, 890 So. 2d 382, 383 (Fla. 2d DCA 2004).
Compelled Testimony from Defendant
A defendant on probation can be compelled to testify at his or her own revocation hearing with regard to probation matters, even if such testimony would incriminate the defendant on the violation. E.P. v. State, 901 So. 2d 193, 195 (Fla. 4th DCA 2005).
Although, in most criminal proceedings, the 5th Amendment prevents a defendant from being compelled to testify, Florida appellate courts have consistently held that a probationer’s agreement to accept the terms of probation waives the privilege with regard to probation matters. Perry v. State, 778 So. 2d 1072, 1073 (Fla. 5th DCA 2001); Dearing v. State, 388 So. 2d 296, 298 (Fla. 3d DCA 1980); Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980).
The right against self-incrimination remains applicable, however, with regard to conduct and circumstances concerning a separate criminal offense. State v. Heath, 343 So. 2d 13, 16 (Fla. 1977); E.P. v. State, 901 So. 2d at 195.
Admissibility of Hearsay
Unlike criminal trials, hearsay is generally admissible in violation of probation proceedings. Reddix v. State, 12 So. 3d 327 (Fla. 4th DCA 2009). However, hearsay may not constitute the sole basis for finding a violation of probation. Reddix, 12 So. 3d at 328; Thomas v. State, 711 So. 2d 96, 97 (Fla. 4th DCA 1998); Knight v. State, 801 So. 2d 160 (Fla. 2d DCA 2001).
Such hearsay evidence may be used only to combine with admissible evidence establishing the violation. Reddix, 12 So. 3d at 328; Thomas, 711 So. 2d at 97.
In Bertoloti v. State, 831 So. 2d 1281 (Fla. 4th DCA 2002), a trial court had revoked defendant’s probation because of failure to complete a drug treatment program. The only evidence of a willful violation was the testimony of the drug treatment program’s records custodian, in which he stated that the chart showed that defendant tested positive for alcohol.
The court found that that this testimony was hearsay and, since it was the only evidence introduced on that issue, it could not serve as the sole basis for a revocation of probation.
- Other Sources: Stewart v. State, 926 So. 2d 413 (Fla. 1st DCA 2006) (reversing revocation of probation relying upon hearsay testimony of drug treatment program director regarding a defendant’s alleged disruptive conduct and refusal to leave the program building during a fire drill); Davis v. State, 831 So. 2d 792, 793 (Fla 5th DCA 2002) (reversing a trial court’s order of revocation where the court took judicial notice of a hearsay document filed within records of a criminal case involving an alleged new law violation); Stoll v. State, 762 So. 2d 870 (Fla. 2000) (a handwritten statement by a domestic violence victim was not admissible or an exception to the hearsay rule merely because the statement was “part of the court records”).
Tolling of Probationary Period
Section 948.06(1), Florida Statutes, provides for retention of jurisdiction of a term of probation that expires during the course of a probation revocation proceeding. The law provides that:
Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary period is tolled until the court enters a ruling on the violation.
This means that, once a legally valid violation proceeding (discussed below) is initiated, the defendant’s term of probation is “frozen,” or “tolled,” so that jurisdiction is retained by the court even after the original probation term contemplated by the sentence expires.
Both the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period, and the mere filing of the affidavit is insufficient.
- Source: Sepulveda v. State, 909 So. 2d 568, 570 (Fla. 2d DCA 2005); Shropshire v. State, 775 So. 2d 349, 350 (Fla. 2d DCA 2000); Baroulette v. McCray, 904 So. 2d 575, 576 (Fla. 3d DCA 2005); Stambaugh v. State, 891 So. 2d 1136, 1139 (Fla. 4th DCA 2005).
Under section 901.02(1), the violation warrant is considered issued when the judge signs it. Morgan v. State, 757 So. 2d 618, 619 n. 1 (Fla. 2d DCA 2000); Slingbaum v. State, 751 So. 2d 89, 90 n. 2 (Fla. 2d DCA 1999).
With respect to the timeliness of allegations filed in amended affidavits, allegations of an affidavit of violation are timely if the amended affidavit is filed before the expiration of the probation at issue or if the allegations in an affidavit filed after the expiration of the probationary period have also been alleged in an earlier affidavit timely filed before the expiration of the probationary period.
- Source: Sepulveda, 909 So. 2d at 570-71; Davis v. State, 623 So. 2d 579, 580 (Fla. 3d DCA 1993); Futch v. State, 605 So. 2d 954, 955 (Fla. 4th DCA 1992); McPherson v. State, 530 So. 2d 1095, 1098 (Fla. 1st DCA 1988); Clark v. State, 402 So. 2d 43, 44-45 (Fla. 4th DCA 1981).
However, a timely affidavit of violation cannot be amended after the expiration of the probationary period to add charges not contained in an earlier, timely affidavit. Sepulveda, 909 So. 2d at 571; Ely v. State, 719 So. 2d 11, 12 (Fla. 2d DCA 1998); Davis, 623 So. 2d at 580; Clark, 402 So. 2d at 44-45.
Contact an Attorney
If you have been accused of violating probation or community control, you may have defenses available to contest the charge or minimize potential penalties.
Contact Hussein & Webber, PL for a free consultation. Our attorneys handle cases in Jacksonville, Orlando, and the surrounding counties of northeast and central Florida.