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:
For these reasons and more, a person facing an alleged violation of probation needs to hire an experienced Tampa Bay criminal defense attorney to represent them. Adam L. Bantner, II has represented those accused of probation violations since 2008 and can help! Call 813.416.7965 for your free consultation today!
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.
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 or probation for dealing in stolen probation, 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.
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.