Don Waggoner Law

Orlando and Kissimmee Criminal Defense Lawyer and DUI Attorney

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CRIMINAL DEFENSE | Probation Violations

•   Probation    •   Pre-Trial Intervention    •   Community Control    •   Violations

Probation

The statute governing Probation and Community Control is Chapter 948, Florida Statutes.

Probation is a type of conditional control that a criminal defendant may be placed on by the court upon conviction by a plea or jury verdict.  Probation my last as long as the maximum possible jail or prison sentence for the particular crime could be, or any lesser time.  First time offenders for most crimes are usually placed on probation.  Conditions of the probation could include community service, payment of fines and court costs, payment of restitution, and other requirements.  


Terms and conditions of probation  F.S. 948.03.

Probation is supervised by a probation officer (PO) whose responsibility is to insure the person on probation gets in no new trouble with the law and completes all the requirements of the probation.  The probation officer may call the probationer’s employer or school to make sure the probationer is employed or in school.  The PO may come to the probationer’s house and search it without needing a warrant.  The PO may require the probationer to take random drug tests.
Drug Offender probation requires the probationer to take frequent and random drug tests and to undergo an evaluation to determine if treatment for abuse is necessary.  


Drug offender probation F.S. 948.20.

Once a probationer has completed all the terms and conditions of the probation without any problems, the probationer may apply to the court for early termination of the probation.  It is up to the discretion of the court whether to early terminate the probation or not, and it usually helps if the PO recommends early termination


Period of probation; duty of probationer; early termination F.S. 948.04.

Pre-Trial Intervention (PTI) -  F.S. 948.08 Pretrial intervention program

This is a program for first time offenders of certain crimes and it is essentially the same as probation.  It is run by the probation office.  The difference between PTI and probation is that upon completion of PTI, the charges against the defendant will be dismissed.
A person who is charged with a nonviolent felony and is identified as having a substance abuse problem or is charged with a felony of the second or third degree for purchase or possession of a controlled substance under chapter 893, prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud; who has not been charged with a crime involving violence, including, but not limited to, murder, sexual battery, robbery, carjacking, home-invasion robbery, or any other crime involving violence; and who has not previously been convicted of a felony is eligible for voluntary admission into a pretrial substance abuse education and treatment intervention program, including a treatment-based drug court program established pursuant to s. 397.334, approved by the chief judge of the circuit, for a period of not less than 1 year in duration, upon motion of either party or the court’s own motion.  F.S. 948.08 (6).

Community Control

Community Control is similar to probation, except that the requirements are much stricter and it can last for a maximum of two (2) years.  Community Control is essentially a form of house arrest.  Community Control is supervised by a Community Control Officer (CCO).  The CCO will come frequently to the offender’s home in order to insure the contollee is at home where he or she is supposed to be.   Terms and conditions of community control F.S. 948.101.
While on Community Control, the controllee must remain confined to the home.  The contollee may be required to have an ankle monitor to insure compliance.   The controllee may only leave the home with the permission of the court or the CCO.  The contollee must notify the CCO anytime he or she needs to leave the home.


Violations

Violations of Probation or Community Control may occur if an offender fails to follow any of the instructions of the court or the PO/CCO.  If the offender fails to complete an evaluation, fails a drug screen, fails to pay costs or restitution as ordered, or otherwise violates the law, the offender may be violated by the court.   


Violation of probation or community control; revocation; modification; continuance; failure to pay restitution or cost of supervision F.S. 948.06.

If the court violates the offender, with rare exception, the court will issue a warrant for the arrest of the offender.  Once arrested, the offender is not entitled to a bond or other release.  However, the offender may request that a bond be set and the court, in its discretion may set conditions for release.  F.S. 948.06 (1)(d)2a; F.S. 903.0351


Restrictions on pretrial release pending probation-violation hearing or community-control-violation hearing.

If the court refuses to allow the release of the offender, the offender will remain in jail until such time as a violation of probation or community control hearing takes place.  At this hearing, the offender is entitled to have the State present evidence of the offender’s violation.  The judge will be the one who determines whether the violation has been proved or not. 

The burden of proof on the State is a preponderance of the evidence.  That means, if the judge believes it is more likely than not that the violation occurred, he will find the offender in violation.  The offender can be required to testify at this hearing, but cannot be required to make admissions to any new crimes that have not yet been decided in court.  Both sides may present hearsay for support.  However, an offender cannot be found in violation of probation on hearsay alone.
If an offender is found to be in violation of probation or community control, the court can either modify the current probation; revoke probation and sentence the offender to a new term of probation/ community control or jail/prison; or the court can revoke and terminate probation/community control and release the offender from further supervision.  If an offender is found not to be in violation of probation/community control, the court can either return the offender to complete the probation/community control or terminate the offender from probation/community control and release the offender from further supervision.