Proving a Violation of Probation

Instead of prison, Probation gives you the chance to close your case without being locked up. In exchange, Probation Officers keep track of you while you’re free. They give you rules to follow and check on you often to make sure you follow them.

When you make mistakes, Probation Officers violate you. But this doesn’t mean you broke the law. The State of Florida must prove you violated the terms of Probation. In Weaver v. State, the Second District Court of Appeal holds the State to its burden during a Violation of Probation hearing.

Probation Orders

After Weaver pleas to Theft, the judge sentences him to 12 months of Probation and community service. The judge orders Weaver to pay some fines and court costs as a condition of Probation. Besides paying moneys, Weaver needs to meet with his Probation Officer as scheduled.

Appearing at Probation is a standard condition. All judges make you show up, normally once or twice a month. Although all cases include court costs, each judge chooses whether to make paying them a condition of probation.

Once Weaver breaks enough rules, his Probation Officer issues an affidavit. The Probation Officer alleges that Weaver failed to report three times, pay the fines and costs, and complete community service. Then the judge signs a warrant to bring Weaver to court to answer for the violations. These are called technical violations because Weaver made mistakes which weren’t new crimes.

Violation of Probation Hearing

At the Violation of Probation Hearing, sometimes called a Final Hearing, the State must prove the alleged violations. First, Weaver testifies. He admits he knew the terms of Probation. He admits that he had to pay moneys and report. However, he explains that he has no job and that right arm paralysis keeps him from driving. Also, he lacks a car and license. No one talks about the community service with him.

Next, the Probation Officer testifies. She confirms that Weaver knew and understood the terms of Probation. She says she knows he violated because the Probation office had no proof he did these things in the affidavit.

Once evidence closes, Weaver argues that he couldn’t afford the monetary conditions. He doesn’t mention the other issues. The judge finds no violation of the financial conditions. Nevertheless, the judge finds that Weaver willfully violated the reporting and community service allegations. Then the judge revokes Probation and sentences Weaver to 120 days in jail. He appeals.

Violation of Probation Law As Applied

The State bears the burden of proof in a Violation of Probation hearing. This means that if they don’t do their job, you win. They must prove the violation is substantial and willful by a greater weight of the evidence. An accidental violation won’t count.

Unfortunately, Weaver objects to nothing during this hearing so he must show fundamental error to win. Fortunately, revoking Probation for an unproven allegation is fundamental error. Here, the Second District shows how little the State proved.

First, the State never proved Weaver willfully failed to report. There was no evidence about how, when or why he failed to report to Probation. They just stated the simple fact that he failed to report. Second, there was no testimony about whether he did the community service at all. The order required he perform the service, not turn in proof. Just because he didn’t turn in any documentation, doesn’t mean he failed to do service. Therefore, the Second District reverses the conviction.

Read the Weaver opinion here!

Talk to An Experienced Florida Criminal Defense Attorney

Violations of Probation are considered sentencing hearings. Like with open cases, you can file motions to suppress and make the government prove the allegations. But your constitutional protections don’t extend as far as they do before conviction. Mr. Brown has handled hundreds of these and argued lots of full blown evidentiary Final Violations of Probation. Upon arrest, you should speak with him immediately to see if he can help you fight the allegations.

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown to see if he can help you with your case! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

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