The handling of a probation violation is vastly different than the handing of other criminal offenses in four important areas: (1) bond/pre-trial release, (2) the rules of evidence, (3) the type of trial one may have and (4) the standard of proof required for a conviction.
How does a probation violation occur?
Before an arrest for a probation violation occurs, a probation officer files an Affidavit of Violation with the Clerk of Court that alleges the grounds for the probation violation. A probation violation can be for what is usually referred to as a “technical violation,” such as missing a probation appointment or for testing positive on a drug test. A probation violation can also be alleged for what is commonly referred to as a “substantive violation” such as an arrest on new criminal charges. A citation for a traffic infraction will not result in a probation violation.
After a probation officer files the Affidavit of Violation, a judge will review the Affidavit of Violation and determine whether to issue an arrest warrant for the probation violation and whether a bond should be set on the warrant. With few exceptions, most arrest warrants for probation violations do not provide for pre-trial release on bond.
What if I, or someone else I know, is arrested for a probation violation?
Florida Rule of Criminal Procedure 3.130 requires every person who has been arrested, even on a probation violation, to be brought before a judge within 24 hours of their arrest for a first appearance bond determination. However, generally, the first appearance judge will defer to the judge who issued the warrant for the probation violation on the matter of bond. While a person accused of a probation violation is not legally entitled to bond as a matter of right, Florida Statute § 948.06 does give judges the authority to set bond in probation violation cases.
Am I entitled to a trial on a probation violation?
After an arrest for a probation violation, Florida law requires the judge to hold a hearing, essentially a trial, as soon as practicable following the arrest on the probation violation. At that hearing, the State has the burden of proving the probation violation. The State is required to prove that the alleged violation was both willful and substantial. Unlike other criminal charges, a probation violation does not have to be proven beyond a reasonable doubt. The State must prove the violation by “the greater weight of the evidence”, which means the judge has to find that the person on probation more likely than not violated a condition of their probation. A person accused of a probation violation is not entitled to a jury trial. The rules of evidence are also more relaxed at a probation violation trial.
What should I do if I anticipate that my probation might be violated?
If you suspect that your probation officer is preparing to violate your probation contact the Law Offices of R. Wayne Richter, P.A. immediately. Taking a proactive approach to a potential probation violation is imperative and may reduce the amount of time that you spend in jail waiting for a bond hearing.
How can Wayne Richter help someone whose probation has already been violated?
If a probation revocation has already occurred, contact the Law Offices of R. Wayne Richter, P.A. to discuss with a probation lawyer whether a bond on the case is possible, as well as, what are the potential defenses to the probation violation. Having an experienced criminal defense lawyer on your side like Wayne Richter may very well make the difference in the outcome of your case.