DEFINITION, PENALTIES, AND PROCEEDINGS
In the State of Florida, a Violation of Probation is when a criminal defendant significantly and purposefully violates his or her probationary sentence conditions. Probation proceedings are substantially different from ordinary criminal cases because of the lower standard of proof, along with multiple constitutional and procedural protections found in other prosecutions.
DEFINITION OF PROBATION
Chapter 948, Florida Statutes, defines probation as a type of community supervision requiring an offender to maintain certain contacts with specified officers (i.e. probation, parole, community supervision officers) and to uphold certain terms or “conditions” which the court order provides.
Florida, considers probation a privilege, not a right. According to certain Florida Supreme Court case decisions, probation does not even constitute a formal sentence. [See State v. Summers, 642 So. 2d 742, 744 (Fla. 1994)]. It is viewed as a “grace” extended by the state “in lieu of a sentence, with its principal function being the rehabilitation of a defendant and the protection of society.” Loeb v. State, 387 So. 2d 433, 436 (Fla. 3d DCA 1980).
VIOLATIONS OF PROBATION
In order to determine that probation has been violated, the prosecution must provide a minimum standard of proof. They must also establish that the alleged violation both was willful and substantial in nature.
STANDARD OF PROOF
The only way a trial court can revoke probation or community control is if the State proves through evidence greater than the defense that the defendant willfully and substantially violated a specific condition of the sentence. [See Stewart v. State, 926 So.2d 413 (Fla. 1st DCA 2006); Reddix v. State, 12 So. 3d 327 (Fla. 4th DCA 2009); Steiner v. State, 604 So.2d 1265 (Fla. 4th DCA 1992)].
Determining whether a violation is willful and substantial must be decided on a case by case basis. [Stewart, 926 So. 2d at 414]. In every case, the State carries the burden of proving the violation of supervision by “competent evidence.” Id. (citing Thompson v. State, 890 So.2d 382, 383 (Fla. 2d DCA 2004)).
In the case of Singleton v. State, 891 So.2d 1226, 1227-28 (Fla. 2d DCA 2005), a probation order required that the defendant “maintain and work diligently at a lawful occupation to the best of his ability.” The testimony of a probation offer was the State’s only evidence on this violation that the defendant did not show any pay stubs or proof of employment.
The court ruled that it was a revocation was not proper on this basis because of the lack of evidence proving that the defendant had not thoroughly looked for a job while he was unemployed after his release from prison.
Other Florida appellate cases have ruled that certain situations are insufficient bases for a violation of probation: by merely being in the proximity of illegal drugs, being arrested without enough proof that a new offense has been committed, or as on one occasion, proof of a defendant not answering the door during a home visit by the probation officer.
- Hanania v. State, 855 So. 2d 92 (Fla. 2d DCA 2003) (stating that a defendant’s mere proximity to drugs found in a car in which he was a passenger was insufficient to support a finding of violation);
- Stevenson v. State, 843 So. 2d 1044 (Fla. 2d DCA 2003) (stating that probation cannot be violated based only upon an arrest);
- Brown v. State, 813 So. 2d 202 (Fla. 2d DCA 2002) (stating that a probation officer’s testimony that, on one occasion, he or she knocked on a defendant’s door during a home visit and did not receive an answer was not sufficient to revoke probation);
- Robaldo v. State, 884 So. 2d 385 (Fla. 2d DCA 2004) (reversing a revocation where the only evidence that a defendant had moved from her residence was hearsay and the probation officer’s testimony that the defendant was not present during one visit. Such evidence was not sufficient to support a trial court’s revocation order).
VIOLATION MUST BE SUBSTANTIAL AND WILLFUL
According to Florida law, probation can be revoked when a defendant violates “in a material respect.” § 948.06(3), Fla.Stat. Appellate courts have added further that “[p]robation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation.” Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992).
A trial court “has broad discretion to determine whether there has been a willful and substantial violation of a term of probation and whether such a violation has been demonstrated by the greater weight of the evidence.” State v. Carter, 835 So.2d 259, 262 (Fla.2002).
If a defendant makes reasonable efforts to uphold a condition of probation, a violation cannot be deemed “willful.” Jacobsen v. State, 536 So.2d 373 (Fla. 2d DCA 1988) (defendant’s failure to leave county by a specified time not considered grounds for revocation when he made reasonable efforts to comply with the condition); Gardner v. State, 365 So.2d 1053 (Fla. 4th DCA 1978) (no willful violation of condition that a defendant leave Florida was proven because his car broke down).
Multiple Florida Appellate decisions show that before probation can be revoked, the court must find through greater weight of evidence that the alleged conduct was both willful and substantial.
- Thorpe v. State, 642 So.2d 629, 629 (Fla. 1st DCA 1994) (stating that “[w]here a probationer has made reasonable efforts to comply with the terms of probation, his or her failure to do so has been held not to be willful”);
- Green v. State, 620 So.2d 1126 (Fla. 1st DCA 1993) (there is no willful violation of probation where an unemployed probationer was unable to make restitution);
- White v. State, 619 So.2d 429, 431 (Fla. 1st DCA), review denied, 626 So.2d 208 (Fla.1993) (there is no willful violation of probation where a probationer, who failed to perform community service, had reported to the community service work site “many times” but was told that work was not available);
- Rainer v. State, 657 So.2d 1230, 1230 (Fla. 4th DCA 1995) (failure to complete drug rehabilitation program is not shown to be willful where uncontradicted testimony indicated that a mental illness interfered with the defendant’s ability to follow instructions);
- Drayton v. State, 490 So.2d 229, 230 (Fla. 2d DCA 1986) (error to revoke probation where there was “no evidence from which the trial court could properly conclude that appellant had the ability to file the monthly report but willfully failed to do so”);
- Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980) (there is no willful violation of condition requiring personal delivery of a report when timely completed report was not delivered because of probationer’s lack of transportation and subsequent incarceration for an unrelated offense).
COMMON TYPES OF VIOLATIONS
In Florida, most violations of probations arise from several common factual scenarios, which include failed drug tests, failure to meet financial obligations, new criminal offenses, failure to complete court-ordered programs, and missed appointments.
NEW OFFENSES / LAW VIOLATIONS
One of the most recurring types of violation of probation is when a new criminal offense is committed during the supervision period.
If the State desires to revoke probation based on the grounds of the commission of new offenses, the State must present non-hearsay, direct evidence connecting the commission at issue with the defendant. State v. Melton, 65 So.3d 96 (Fla. 1st DCA 2011); Johnson v. State, 962 So.2d 394, 396–97 (Fla. 2d DCA 2007); Blair v. State, 805 So.2d 873, 876, 877 (Fla. 2d DCA 2001).
If the State fails to present such evidence, revocation is improper. Johnson v. State, 962 So.2d 394, 396–97 (Fla. 2d DCA 2007). Therefore, if hearsay testimony from police officers repeating the statements of alleged theft victims is the only evidence to a grand theft offense, the prosecution then fails to offer sufficient legal evidence to support the revocation of probation. Id. at 398.
Merely being arrested is not a sufficient basis for a violation of probation. Ontiveros v. State, 746 So.2d 1174, 1174 (Fla. 2d DCA 1999). Additionally, no violation can be found where the offense in complaint occurred prior to the defendant being placed on probation by the judgment and sentence. Nelson v. State, 802 So. 2d 470 (Fla. 2d DCA 2001).
POSITIVE DRUG TESTS
A large percentage of felony probation violations in Florida come from positive drug test. In this situation, the State must offer substantial evidence the defendant’s body actually contained an illegal drug – a task that prosecutors often underestimate.
While “[p]roof of the identification of contraband does not require scientific tests … it must be reliable and based on the observations of a witness with experience and training.” Weaver v. State, 543 So.2d 443, 444 (Fla. 3d DCA 1989).
This means that the prosecution cannot merely use a probation officer’s (who has no expert or scientific knowledge) to prove a positive drug result. Bray v. State, 75 So.3d 749 (Fla. 1st DCA 2011). A probation officer’s testimony concerning laboratory results is also not enough to prove a violation. Starling v. State, 110 So.3d 542 (Fla. 1st DCA 2013).
Multiple Florida Appellate rulings show the technical requirements for proving a positive drug result in the context of revoking probation:
- Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989) (reversing a revocation of probation where the testimony of the agent who conducted the field test was the only non-hearsay evidence the prosecution used to prove a substance was heroin. This agent could not remember the name of the field test, did not know if the test was reliable, and could not say, independently of the test, whether the substance was heroin);
- Bray v. State, 75 So. 3d 749 (Fla. 1st DCA 2011) (reversing a revocation of probation where the alleged violation was based on two probation officers’ hearsay testimony concerning positive lab results obtained from a defendant’s urine sample. Neither testified that they had expertise in the context of narcotics or drug testing, even they both testified that they had conducted hundreds of urinalyses.
- Carter v. State, 82 So. 3d 993, 995 (Fla. 1st DCA 2011) (holding that a field test by itself was not sufficient evidence of drug use when the officer performing the test did not know the test’s name or how it worked scientifically, and the officer acknowledged that the test had been inaccurate before);
- Queior v. State, Case No: 2D13-3261 (Fla. 2d DCA 2015) (reversing a revocation of probation based on a positive drug field test where a probation officer’s testimony was the only evidence offered to prove that the substance was oxycodone during the functioning of a drug test strip. The officer could not explain the science of the test, having no knowledge of how the chemical reactions provided results.)
- Starling v. State, 110 So.3d 542 (Fla. 1st DCA 2013) (reversing a revocation of probation based on a violation by drug possession where the State’s only evidence was the probation officer’s testimony that he obtained a urine sample from the defendant, and that the sample “field tested positive for cocaine and came back confirmed on December 24th, from Kroll Laboratories that it was positive for cocaine”);
But see also Terry v. State, 777 So. 2d 1093 (Fla. 5th DCA 2001) (affirming a revocation of probation based on a field test result where the probation officer testified as to the nature of the field test, how it was performed, that he had conducted frequent administrations of the test, and the fact that he was certified by the State to administer the test.)
FAILURES TO COMPLETE DRUG TREATMENT PROGRAMS
Concerning completion of a substance abuse program, failure is a willful violation if there is proof that the lack of completion is the fault of the accused. Rubio v. State, 824 So. 2d 1020, 1021-22 (Fla. 5th DCA 2002); Curry v. State, 379 So. 2d 140, 141 (Fla. 4th DCA 1980) (states: “when a defendant’s probation is sought to be revoked because of his failure to successfully complete a designated rehabilitation program, some evidence must be submitted to show that the defendant was in some manner responsible for such failure”).
A defendant’s failure, furthermore, to begin and finish a substance treatment program is not a basis to revoke his or her probation if the probation order does not specify a timeframe for entrance and completion. Wilkerson v. State, 884 So. 2d 153 (Fla. 2d DCA 2004). Therefore, violation cannot stand if the probationary period allows enough time to complete the program. Yates v. State, 909 So. 2d 974 (Fla. 2d DCA 2005).
FAILURE TO PAY FINANCIAL OBLIGATIONS
Failure to pay fines, costs of drug testing, restitution, costs of supervision, court costs, and other fees is a common basis in Florida for a violation of probation. The issue of willfulness therefore follows, connected to the defendant’s ability to pay.
Once it has been established that a probationer is not paying such costs, under Section 948.06(5), Florida Statutes, the probationer is responsible to submit clear and compelling evidence that he or she was unable to pay.
However, this statute does not excuses the trial court of its duty to make a finding that the probationer is able to pay. Martin v. State, 937 So. 2d 714, 715-16 (Fla. 1st DCA 2006); See Smith v. State, 892 So. 2d 513, 514 (Fla. 1st DCA 2004) (reversing an order revoking community control because, “[t]he court did not . . . find either orally or in its written order that appellant had the ability to pay”).
This, then, establishes that revoking probation because of the failure to pay costs without a finding that the petitioner was able to pay requires reversal. Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994) (holding that, before a probationer can be imprisoned for failure to make restitution, it must be proved that the probationer has, or has had, the ability to pay, but that the probationer has willfully refused to do so.); Whidden v. State, 701 So. 2d 1224, 1225 (Fla. 1st DCA 1997).
ACTS RESULTING FROM MENTAL ILLNESS
If a probationer’s mental illness leads to a violation of probation, a finding of “willfulness” cannot be supported for the revoking of probation. If the only doctor testifying at a violation of probation hearing states that the defendant is schizophrenic or paranoid, causing the violation to result from delusions, the court cannot find the violation “willful.” Copeland v. State, 864 So. 2d 1197 (Fla. 1st DCA 2004).
ACTS RESULTING FROM NEGLIGENCE OR INEPTITUDE
A defendant’s inept or negligent conduct cannot solely support the required “willfulness” necessary to a finding of probation violation. Cranz v. State, 854 So. 2d 843 (Fla. 3d DCA 2003).
In McCray v. State, 754 So. 2d 776 (Fla. 3d DCA 2000), a requirement of the defendant’s probation was that he be home from work by 8:30 p.m. If he could not be home by that time, he must call his community control officer with an explanation of his absence. The defendant was found to violate his probation when he had problems with his car and did not make it home by the defined time.
The Third District Court of Appeal held, based on these facts, that the failure of the defendant to ensure he had the funds on hand to make an emergency call, or his failure to consider attempting to have a family member assist him in contacting his community control officer, was inept conduct or negligence and therefore was sufficient to be a willful violation. Id. at 778.
MISSED APPOINTMENTS OR REPORTS
Missing one appointment with a probation office, and offering a valid explanation as to why the missed appointment occurred, is not sufficient to demonstrate substantial or willful noncompliance with probation. Rodriguez v. State, 768 So. 2d 1234 (Fla. 5th DCA 2000). See also Washington v. State, 667 So. 2d 255 (Fla. 1st DCA 1995) (single missed counseling session); Bingham v. State, 655 So. 2d 1186 (Fla. 1st DCA 1995) (a single missed meeting of sex offender group counseling).
Along similar lines, failing to file a monthly report, but having reported the month before and after that date, is not sufficient to demonstrate a substantial and willful violation of probation. See Moore v. State, 632 So.2d 199, 199 (Fla. 1st DCA 1994); Williams v. State, 896 So. 2d 805 (Fla. 4th DCA 2005). State vs. Carter, 835 So. 2d 259, 261 (Fla. 2002).
PENALTIES FOR VIOLATING PROBATION
In Florida, if probation or community control is revoked, the court may
Upon the revocation of probation or community control in Florida, the court may execute any sentence on the offender which it might have imposed originally at sentencing. Therefore, the defendant may be sentenced up to, but not in excess of, the statutory maximum penalty for the original offense at issue.
As an example, for the first time DUI offense, 180 days in jail is the statutory maximum penalty. The arrest for the DUI would normally be counted as a day of time served. If, on the day of his or her arrest, the accused posts bond, he or she has 179 days left as a possible maximum sentences. In this scenario, if the probationer violates DUI probation, he or she or she could spend as many as 179 days in jail.
If a defendant is found to have violated probation, an Affidavit of Violation will be submitted by the supervising officer to the court. In felony cases, the officer will submit a Department of Corrections Violation Report. This includes an affidavit – a sworn statement which outlines the officer’s reasons for believing the defendant committed the discussed violation.
The presiding court, having received the affidavit, will review the allegations in order to determine if they find reasonable grounds. If so, they will issue a capias or Warrant for arrest of the defendant. The defendant will often then be placed on a “no bond” status, requiring the defendant to stay in jail until bond is requested or an intervening motion is submitted. The defendant will be arraigned on the violation charge, and an evidentiary hearing will be set. This hearing will require the prosecution to provide evidence of a substantial and willful violation of supervision. Thompson v. State, 890 So. 2d 382, 383 (Fla. 2d DCA 2004).
COMPELLED TESTIMONY FROM DEFENDANT
A defendant on probation may be required to testify, with regard to probation matters, at his or her own Violation of Probation hearing, even if the testimony would convict him or herself on the violation in question. E.P. v. State, 901 So. 2d 193, 195 (Fla. 4th DCA 2005).
While the Fifth Amendment to the United States Constitution prevents, in most criminal proceedings, the defendant from being compelled to testify, Florida appellate courts have consistently held that this Fifth Amendment privilege is waived with regard to probation matters when the probationer originally accepted the terms of the agreement. See Perry v. State, 778 So. 2d 1072, 1073 (Fla. 5th DCA 2001); Dearing v. State, 388 So. 2d 296 (Fla. 3d DCA 1980); Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980).
However, circumstances and conduct concerning a separate criminal offense are still covered by the right against self-incrimination. State v. Heath. 343 So. 2d 13, 16 (Fla. 1977); E.P., 901 So. 2d at 195.
ADMISSIBILITY OF HEARSAY
Hearsay is generally admissible in violation of probation hearings, which is different from all other criminal trials. Reddix v. State, 12 So. 3d 327 (Fla. 4th DCA 2009). But a finding of probation cannot be solely based on hearsay. Reddix, 12 So. 3d at 328; Thomas v. State, 711 So. 2d 96, 97 (Fla. 4th DCA 1998); Knight v. State, 801 So. 2d 160 (Fla. 2d DCA 2001). Hearsay evidence can only combine with admissible evidence to determine a violation. Reddix, 12 So. 3d at 328; Thomas, 711 So.2d at 97.
In Bertoloti v. State, 831 So. 2d 1281 (Fla. 4th DCA 2002), a trial court revoked the defendant’s probation because the defendant failed to complete a substance treatment program. However, the only evidence proving willful violation was the treatment program’s records custodian’s testimony. In this testimony, the custodian said that the chart held results that showed the defendant tested positive for alcohol. The court found this testimony to be hearsay, which, as the only evidence offered on this issue, was not sufficient as the basis for a revocation of probation.
In a similar case, Stewart v. State, 926 So.2d 413 (Fla. 1st DCA 2006), a drug treatment program director testified that the defendant was discharged from the treatment program because the defendant refused to leave the building for a fire drill, and for involving himself in verbal disputes with other residents of the program. The court then reversed the defendant’s violation of probation due to the fact that the only evidence that the defendant’s conduct was substantial and willful was this hearsay testimony, even though sufficient evidence showed the defendant was in fact expelled from the program.
See also Davis v. State, 831 So. 2d 792, 793 (Fla 5th DCA 2002) (the reversal of a trial court’s revocation order where the court took judicial notice of a hearsay document filed within records of a criminal case involving an alleged new law violation); Stoll v. State, 762 So .2d 870 (Fla.2000) (where a handwritten statement by a domestic violence victim was not admissible or an exception to the hearsay rule merely because the statement was “part of the court records”).
TOLLING OF PROBATIONARY PERIOD
Section 948.06(1), Florida Statutes, provides for retention of jurisdiction of a probation term that expires during the course of a probation revocation proceeding. The law provides that:
Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary period is “tolled” (frozen) until the court enters a ruling on the violation.
This means that, once a legally valid violation proceeding (discussed below) is initiated, the defendant’s term of probation is “tolled,” so that jurisdiction is retained by the court even after the original probation term contemplated by the sentence expires.
In order to toll the probationary period, both the filing of an affidavit of violation and the issuance of an arrest warrant are required, and merely filing the affidavit is sufficient. Sepulveda v. State, 909 So. 2d 568, 570 (Fla. 2d DCA 2005); Shropshire v. State, 775 So. 2d 349, 350 (Fla. 2d DCA 2000); Baroulette v. McCray, 904 So. 2d 575, 576 (Fla. 3d DCA 2005); Stambaugh v. State, 891 So. 2d 1136, 1139 (Fla. 4th DCA 2005). Under section 901.02(1), the warrant is issued when the judge signs it. Morgan v. State, 757 So. 2d 618, 619 n. 1 (Fla. 2d DCA 2000); Slingbaum v. State, 751 So. 2d 89, 90 n. 2 (Fla. 2d DCA 1999).
Concerning the timeliness of allegations filed in amended affidavits, the allegation of an affidavit of violation is timely under the following conditions: if the amended affidavit is filed before the expiration of the probation at issue, or if the allegations in the affidavit filed after the expiration of the probationary period have also been alleged in an earlier affidavit timely filed before the probationary period’s expiration. Sepulveda, 909 So. 2d at 570-71; Davis v. State, 623 So. 2d 579, 580 (Fla. 3d DCA 1993); Futch v. State, 605 So. 2d 954, 955 (Fla. 4th DCA 1992); McPherson v. State, 530 So .2d 1095, 1098 (Fla. 1st DCA 1988); Clark v. State, 402 So. 2d 43, 44-45 (Fla. 4th DCA 1981).
But it is important to note that a timely affidavit of violation cannot be amended after the expiration of the probationary period to add charges not contained in an earlier, timely affidavit. Sepulveda, 909 So. 2d at 571; Ely v. State, 719 So. 2d 11, 12 (Fla. 2d DCA 1998); Davis, 623 So.2d at 580; Clark, 402 So. 2d at 44-45.
CONTACT AN ATTORNEY
Keeping probation requirements is not an easy task; for many, it is a daily stress and difficulty. Sometimes accidents, errors, or issues occur that may lead to an accusation of violation of probation. If you have experienced such an accusation of violating your probation in Broward County, you may be in need of legal counsel. Probation violation proceedings are usually very technical, which means you need an attorney to answer the allegations against you, give you legal counsel on available options, and to make sure you know that you do not have to face court again without someone who has your back.
Our GMV Law Group is ready to offer you a free consultation. Contact us today.
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