Violation of Probation can be a serious offense and could lead to your probation being revoked and you being sentenced to the maximum term that the underlying charge allows for. If you are violated on probation, you may also end up sitting in jail until the violation is resolved that is because the court does not have to set a bond. Therefore, it is important to retain an experienced VOP attorney as soon as possible.
Typically for a violation of probation the court would have discretion in sentencing and can sentence you up to the maximum that is allowed for the underlying charge. For example if you are on probation for a first degree felony and violated that probation by, for example being arrested for driving while license suspended, the court can now revoke your probation and sentence you to 30 years in prison.
However, since October 1st, 2019, the court is now limited to imposing a sentence of modification and continuing probation under certain circumstances. To qualify for a mandatory sentence of modification, you must meet the following criteria:
• You are on probation
• You are not a violent felony offender of special concern
• The alleged violation is a technical, low-risk violation, and
• You have never been found to have violated the terms of your current period of supervision.
A technical violation is a violation of a term of supervision other than a new law violation. This means any violation that does not involve an arrest for a new criminal charge. This category includes a missed appointment with your probation officer, a missed or failed drug test or a failure to pay fines and court costs.
A substantive violation of probation is any violation that involves an arrest for a new criminal charge, for example an arrest for driving while license suspended. However, a simple civil traffic infraction ticket will not be considered a violation of your probation. The alleged crime you are arrested for while on probation has to be committed after the date you were first put on probation. This means that if you committed a second crime before being placed on probation for the first charge but are only arrested on a warrant for the second crime after you officially start probation, the arrest for the second charge does not violate your probation even though the actual arrest occurred after your supervision start date.
In order to prove that you violated probation, the state has to prove that you willfully violated your terms of probation. If the alleged violation was outside of your control, then the state would not be able to prove this element and the judge should dismiss the VOP. An example of a violation that you had no control over is if you are involved in an accident a few days before your appointment with your probation officer and end up unconscious in the hospital and are not released until a few weeks later. By the time you are released, you missed your appointment with your probation officer and have a warrant for a violation because of the missed appointment.
Another element the state has to prove for a VOP is that the alleged violation is substantial. Whether or not the violation is substantial will depend on the circumstances and is reviewed on a case by case basis. For example a violation for failure to pay $5 of fines and costs after you paid over thousands of dollars and are otherwise in compliance with all other conditions will likely not be substantial.
If you can successfully argue that you did not violate probation, for example because you actually completed the treatment that the probation officer alleged you didn’t do, this is obviously the best defense for a VOP. This is why I always recommend that you keep a copy of everything you turn in to probation showing that you completed a requirement, such as community service work or treatment.
Hillsborough County has a special division dedicated to handling solely felony violations of probation. This means that there is one judge in Tampa who will only handle violations. The judge currently assigned to this division is Nick Nazaretian. Judge Nazaretian will hear all felony VOPs that involve technical violations as well as all VOPs, where the alleged new law violation is a misdemeanor. If you have a new felony charge, the VOP will be heard together with the alleged new felony charge in front of the judge who heard the case you are on probation for. Since all the judge does is hear VOPs, he is used to hearing all kinds of excuses from defendants as to why they failed to comply with probation and he is typically able to tell whether or not someone is lying. This means it is wise to tell the truth when you are in front of him or it could end up hurting you when it comes to sentencing.
If you hire us to represent you on your VOP, we can file a motion to try and have you released from jail pending the resolution of the case. This motion, will get you in front of the judge as soon as possible instead of having to wait in jail, possibly weeks in some cases, until the next
court date set by the court. At that court date, we can then either argue to have you released on bond or even resolve the violation depending on the circumstances. An attorney can also help you understand your options and possible defenses to a violation or an attorney can at least present favorable facts to the court in case of an admission to the violation, which would then in turn help with the sentence.