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In both misdemeanor and felony cases, the sentencing judge has the option of placing the offender on a period of probation (unless there is a statutorily required minimum mandatory prison sentence). Misdemeanor probation is managed by the Salvation Army Correctional Services, while felony probation is supervised by the Florida Department of Corrections.
Regardless of the crime involved, all probation sentences require that the defendant maintain a stable residence and employment, refrain from the use of intoxicants to excess, and not commit new criminal offenses. Depending on the type of offense involved, the court may also impose specific conditions which include drug testing, curfews, drug and alcohol counseling, and restitution to any named victims.
Apart from those cases where a person on probation is arrested for a new criminal offense, the majority of violations occur as a result of a breakdown in communication between the probationer and the supervising officer. That is why I, Attorney Robert Heyman, stress to my clients who have received probation to make a good impression on their probation officer at the initial interview and to stay in constant contact while under supervision. Without exception, probation officers have a huge caseload — odds are that they will focus their attention away from my client and towards a more troublesome probationer should these two rules be followed.
Violation of Probation Cases
In the event of a violation of misdemeanor probation (without a new charge), the court will issue a summons for the probationer to appear in court to answer the violation. In felony cases, the officer files a violation report with the judge and requests that an arrest warrant be issued. Note that there is no legal right to bond on a violation of probation. While bond may be granted, that decision is entirely within the court's discretion. When my client is arrested on a violation, I immediately contact the probation officer to discuss their case and hopefully obtain favorable information which may be helpful in convincing the judge to grant a reasonable bond pending resolution of the case.
Discovery in a violation of probation (VOP) case is usually limited to the violation report and the names and contact information of the relevant witnesses. Should there be a new substantive charge, police reports and other evidence may also be supplied. Please note that there is no right to a jury trial in a VOP. If the case cannot be resolved through negotiations with the state attorney or the judge, the case is set for an evidentiary hearing at which time the judge will make the sole determination if a willful violation of probation occurred.
Failure to pay restitution or satisfy other monetary obligations of probation can form the basis of a VOP; however, only if the state proves that the probationer had the financial ability to pay and refused.
Regardless of the reason for the violation, it is imperative that the defense attorney communicate with the probation officer and, after a complete investigation, either negate or minimize the VOP and convince the judge to reinstate probation.
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