Most people know that the standard for a criminal case is “beyond a reasonable doubt.” Perhaps, as a result of the “CSI Effect” and all of the legal dramas on television. However, what many don’t know is that a violation of probation case has a different standard. The standard in a violation of probation case is “by the greater weight of the evidence”, in Florida, and the violation must be “willful” and “substantial.”
In fact, before anyone accepts probation for their underlying criminal charges they should be made aware of the pitfalls and risks of going on probation. Many probationers fail to successfully complete probation; in fact, as of the most recent annual report from the Department of Corrections for the 2013-2014 period, the rate of successful Community Corrections completion stands at 56.4%. Community Corrections includes, pre-trial intervention, probation, drug offender probation, sex offender probation, community control (house arrest), parole, conditional release, and addiction recovery. With that type of success rate (which, admittingly, seems higher than I anticipated), you will want to make sure you understand all of the terms of your probation and to have your attorney clear up any ambiguities.
The goal of any criminal defense attorney is to keep their client out of jail or prison. However, in some circumstances, it may be in your best interest to serve some time to squash an unreasonably lengthy probation period. For instance, if you have twelve (12) years of probation left but you are able to terminate those twelve (12) years by spending one (1) year and a couple months in the Department of Corrections then it may be in your best interest to do so depending upon your propensity to violate your probation. Otherwise, a couple violations and you may be spending the statutory maximum in prison anyways. Probation and Communty Correction is a system that is setup largely for a “got ya.” However, this is a decision left up to the client. The client has to serve the time and not the attorney.
There is no jury in a violation of probation case – the judge is the sentencer. There are only two court dates – (1) VOP arraignment, and (2) VOP hearing. The entire VOP process will typically only take two to three months unless there are grounds for continuances.
It is important to not rush off to admit any violations of probation. Let some of the process play out first. There are three options in resolving a violation of probation case – (1) Open plea (which opens you up to a statutory maximum possibility), (2) Negotiated plea with the State, or (3) VOP hearing (also opens you up to a statutory maximum possibility).
Each option has pros and cons. For instance, an open plea to the judge depends on your specific case and who is your assigned judge. That is why it is important for your attorney to know the personalities, tendencies, and quirks of each judge he or she practices in front of. The negotiated plea with the State depends upon who the Assistant State Attorney (ASA) is handling your case, your attorney’s ability to be a tough negotiator, your prior record (specifically, your scoresheet), the underlying crime for which you are on probation for, whether it was a techinical violation or a new law violation, and what conditions of probation that you are accused of violating. Lastly, the VOP hearing, which acts as a mini-trial of sorts, is the final step. If you are unable to reach an agreement with the state or want to avoid the uncertainty of an open plea in front of a judge known for harsh sentencing then you must have a VOP hearing. A VOP hearing will only take a couple of hours, at most, to conduct and can usually be completed during an afternoon. At the hearing it is important to remember that the standard is “by the greater weight of the evidence” (which is 51% in favor to win – a burden the state must meet) and that your violation must be both “willful” and “substantial.”