If you have been notified of a probation violation, your freedom may be in jeopardy. The experienced criminal defense attorneys at O’Mara Law Group can protect your rights and provide an effective defense for clients in Orlando surrounding areas.
Being accused of violating misdemeanor or felony probation in Florida is a serious matter that can result in significant prison time without the benefit of a trial. Florida law gives judges discretion in handling probation violation cases, and if you don’t have representation, they are likely to heed the recommendations of the prosecutor.
When you have the legal team at O’Mara Law Group on your side, you can count on a viable defense strategy that can result in a positive outcome for your probation violation case.
Can you violate probation and not go to jail?
A probation violation does not automatically result in a prison sentence. When you have been accused of violating probation in Orlando, there are two opportunities for the state to send you to jail:
- When a warrant for your arrest is issued for the alleged violation
- When the judge sentences you for the violation, if your case reaches that point
In some cases, you will learn about your violation of probation when you are arrested and sent to jail. However, if the alleged violation is a misdemeanor, criminal traffic violation, or a technical violation, Florida law allows a judge to mail you a Notice to Appear rather than issuing an arrest warrant.
A judge typically cannot sentence you to jail for a technical violation.
Beginning with the date that you are accused of a probation violation, your probation period is tolled until the violation is resolved. This means that you do not receive credit for the period of probation during this time unless the case is dismissed.
What are the court’s options for a probation violation
When you are found guilty of violation of probation by your own admission or through the findings of the court, the court has the option to continue, modify, or revoke your probation.
Continuance of Probation
Having your probation continued is the best possible outcome. This means that the conditions of your probation remain the same and you are basically receiving a warning and possibly a stern lecture by the judge.
Modification of Probation
If the probation is modified, it is usually not in your favor. Generally, it means the term may be lengthened or the conditions will become more restrictive.
Revocation of Probation
Having your probation revoked is the worst possible outcome and almost certainly means that you will serve a jail sentence.
What are my rights when accused of a violation of probation?
Because probation is the sentence you received for a crime for which you were convicted, you have the same rights as if you had been sentenced to jail time, not the rights you would have if you were facing a new charge. This means you do not have the following rights when accused of a probation violation:
- Presumption of innocence
- Trial by jury
- To be acquitted unless proven guilty beyond a reasonable doubt
You do have the following rights:
- To be acquitted unless deemed guilty by a preponderance of the evidence
- To be heard
- To present witnesses on your behalf
- To have mitigating factors considered
- To be represented by an attorney
Preponderance of the evidence is a lower standard of proof than reasonable doubt. The preponderance of the evidence standard requires only that the judge determines your guilt is more likely than not.
Probation Revocation Jail Time
If probation is revoked, the court may impose the same sentence that could have been imposed if probation had not been granted.
If jail time is ordered, the amount of time combined with probation cannot exceed the maximum sentence. However, the law prohibits the court from awarding time spent on probation as time served.
Incarceration is mandatory in the following circumstances:
- You have been classified as a violent offender of special concern and arrested for a qualifying offense.
- You were convicted of specific qualifying offenses.
- You have been previously found by a court to be a habitual violent offender, a three-time felon, or a sexual predator who is arrested for a qualifying offense.
What factors are considered at a probation violation hearing?
Unless waived by the court in specific circumstances, the probation officer must present the following for the court’s consideration:
- Whether the offered community facilities, programs, or services were appropriate
- Whether the probation department has the ability to provide adequate supervision
- Treatment options that would be beneficial but are unavailable in Orlando, or the surrounding areas
- Your prior supervision history, including participation in treatment, educational programs, vocational programs, and other relevant actions
- Whether you are a candidate for alternatives to jail, such as drug court or mental health court
To qualify for drug court in Orlando, the offense for which you were placed on probation must be a non-violent offense, and the court must determine that you are amenable to the program.
If you have been classified as a violent offender of special concern, the court must consider the following:
- The nature and circumstances of the violation
- Your present conduct and criminal convictions
- Whether sanctions other than incarceration would be effective
- Whether you pose a danger to the community
The court is required to sentence you to jail and impose the maximum penalty allowed by law if it finds that you are a danger to the community. If the court finds that you are not a danger to the community, the court may revoke, modify, or continue your probation.
Common Types of Probation Violations in Florida
Probation violations may be technical or substantive. Substantive violations are new crimes, including felonies, misdemeanors, and criminal traffic. Technical violations are non-criminal violations that pertain to the terms of your probation.
Technical Violations
- Failure to report to the probation officer at the intervals specified
- Failure to permit the probation officer to visit your home, workplace, or elsewhere
- Failure to maintain gainful employment to the fullest extent possible
- Leaving a specified area without permission from your probation officer
- Failure to pay fines, fees, or restitution when due
- Associating with individuals involved in criminal activities
- Visiting establishments or dispensaries that sell or dispense intoxicants
- Failing a drug test or alcohol screening test
- Failing to complete required community service within the deadlines
Leaving the state without your probation officer’s approval may be considered a substantive offense if the probation officer learns of your absence before you return or if you fail to promptly return.
Substantive Violations
- Being arrested for a felony, misdemeanor, or criminal traffic offense
- Possession of a firearm
- Possession of weapons without your probation officer’s approval
If you are arrested for a crime while on probation, in addition to the probation violation, you will also face new criminal proceedings for the alleged crime. You will retain all of your constitutional rights, including your right to a trial by jury and presumption of innocence until proven guilty beyond a reasonable doubt.
However, merely being arrested for a crime is considered a violation even if you have not yet been convicted. The probation department is not required to wait for the disposition of your trial before resolving your case. This means that you could go to prison for a crime for which you have not been convicted.
This underscores the importance of retaining a reputable criminal defense attorney as soon as possible after your alleged probation violation.
Is a probation violation a felony?
A probation violation in itself is not a felony or misdemeanor. If the violation is a crime, a separate offense will be charged in addition to the probation violation.
What is the procedure when you are accused of violating probation?
When any law enforcement officer believes you have violated probation, the officer may arrest you or request a warrant for your arrest. Depending on the offense, the judge will grant a warrant for your arrest or send you a Notice to Appear.
If you are arrested, the judge in the probation revocation hearing has the option to commit you or incarcerate you with or without bail until the allegation is resolved.
What defense is available in a probation violation case?
Without an attorney, the deck is stacked against you in a probation violation hearing. It is crucial to have a criminal defense attorney present your defense on your behalf in the hearing. The state of Florida has the benefit of representation by a prosecuting attorney, and you need representation too.
You may have a viable defense if you can demonstrate the following to the court:
- Your failure to pay was due to an inability to pay.
- You did not fully understand the terms of your probation and did not intend to violate them.
- If charged with possession of drugs, you may have a defense if you were unaware of the presence of the alleged drugs and did not have control over them.
- You had a medical emergency that prevented you from following through with all the terms of your probation.
- You need drug and alcohol rehabilitation or mental health treatment.
Every case is different. A skillful defense attorney in Orlando can review your case and determine what defense strategies would best apply to your unique case.
Why should I trust O’Mara Law Group to help me with my probation violation case?
Mark O’Mara is one of the foremost criminal defense attorneys in Orlando, and the surrounding areas. He has a Martindale-Hubbell A.V. Preeminent rating for ethics and excellence. He is board certified in criminal trial law and has counseled on legal matters across the nation.
Mr. O’Mara has served as a legal analyst for CNN since 2013 and uses his voice to advocate for change in state and national laws that promote the over-prosecution of American citizens. O’Mara and his team of defense attorneys care passionately about the needs of each client.
If you have been charged with a probation violation, you need an attorney to stand with you as soon as possible. Don’t wait until it is too late. Contact the O’Mara Law Group for a free consultation with a skilled criminal defense attorney in Orlando, Florida today.
Criseyde Brew - Google Reviews: “Mark and Alyssa saved my husband's life considering he was facing years of losing his freedom … I could see it clearly from watching them in trial. Mark fought for my husband like he was his own family. From the way he prepared for and then spoke in trial, I can see he is in the highest league of excellence as a lawyer. Alyssa is extremely sharp and articulate. They have a great understanding of the law and strategy needed for defense.”
