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Al's Legal Corner - Did You Know?

Question: What is a Violation of Probation Evidentiary Hearing?

Answer: When a person violates probation, the Court will hold a Violation of Probation Evidentiary Hearing unless there is an alternative resolution achieved, such as an admission of the violation made by the Defendant, or a dismissal of the violation by the State. If the Defendant refuses to enter an admission to the violation, and the State refuses to dismiss such, then an Evidentiary Hearing will occur with the Judge acting as the finder of fact. There is no right to a jury trial in a Violation of Probation, as you are not being convicted of any new Criminal acts. Instead, the Court is simply amending the sentence from what was issued to what always could have been imposed from the very initial sentencing hearing.

The Court will apply a “greater weight of the evidence” standard of proof in determining whether the Defendant willfully and substantially violated the terms of probation. Basically, it is a very low standard of proof, sometimes described as more likely than not, rather than the very high standard of proof which was used for the underlying Criminal offense, “proof beyond a reasonable doubt,” the highest standard of proof in a Criminal matter. The Rules of Evidence are also different during a VOP Evidentiary Hearing, as hearsay evidence is admissible. However, a VOP finding cannot be limited to hearsay evidence by itself, as the VOP must be supported by more than simply hearsay.

The basis for a VOP can be anything from being charged with a new Criminal offense while on probation, to a positive urinalysis test, failing to pay fines and Court costs, and/or failing to complete required community service hours or mental health / substance abuse counseling. Likewise, other common examples include violating curfew, absconding (i.e. moving without anyone knowing your whereabouts), missing appointments with your Probation Officer, or simply being around Criminal activity and known Felons. Based upon any one of these examples, or others, the Probation Officer will file an Affidavit of Violation. Upon receiving such, a Judge will determine whether to issue an arrest warrant, whether to set a bond, etc. Once the process begins, Florida Statute 901.02 states the probationary period is tolled until the Court enters a ruling on the Violation. This means that, once a legally valid Violation proceeding 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. However, the Defendant is still on probation, which means additional reasons for the violation can be added by the Probation Officer with the filing of Amended Affidavits of Probation in the event the Defendant commits additional violating acts. The Defendant will eventually have a Preliminary VOP, which is similar to an Arraignment, whereby the Defendant either admits or denies the Violation. If the Defendant denies the Violation, then the matter is eventually set for a VOP Evidentiary Hearing.

Sadly, people often will spend large amounts of money on a Criminal Defense Attorney for the underlying offense, yet become thrifty when a person violates probation. The fact is that defending a Violation of Probation is, in and of itself, much more affordable than the expense in defending the underlying offense at a jury trial. This, of course, presumes the attorney is being hired only to defend the Violation of Probation, and not any new criminal charges. The Defendant can receive up to the maximum punishment for the underlying offense should the Defendant be found guilty of violating probation. Thus, if you paid a large amount of money during the underlying offense, it makes no sense to become thrifty during a Violation of Probation situation where the Defendant faces the same punishment exposure as during the underlying offense jury trial or plea hearing.

A Violation of Probation moves very quickly through the Court system, so time is of the essence. If you, or someone you know, has been accused of a Violation of Probation, call my office immediately. We are only digits away, 24/7!