What is Probation in Orlando, Orange County, Seminole County, and Osceola County?
Florida Statutes Chapter 948 governs probation and community control in Florida. Probation is a type of supervision program that requires an offender to maintain communication with specified officers such as probation or community supervision officers. Offenders on probation must also abide by certain terms and conditions as provided by court order. The Florida Supreme Court has previously found that probation does not necessarily count as a sentence, but rather, is a privilege and alternative to serving prison time. State v. Summers, 642 So. 2d 742, 744 (Fla. 1994).
Difference Between Probation and Community Control:
Some types of probation are more relaxed than others. For example, “drug offender probation”is a form of probation that is geared towards the treatment and rehabilitation of drug offenders according to an individualized treatment plan determined by probation officers. “Administrative probation” is also a form of probation reserved for offenders who are “low risk” to the community. Once completing half of the probationary term, the offender may be transferred by the Department of Corrections to “non-
** The Modarres Law Firm will often times be able to negotiate the early termination of your probation once you have completed a sufficient portion of it (usually half of the probationary term).
Conversely, “community control” is a form of intensive, supervised custody which usually involves ankle monitors, curfews, surveillance etc which restricts the freedom of the offender in the community and their home. Community control involves intensive monitoring, reporting, restrictions, drug testing, and other conditions that make it excessively more stringent and strict than conventional probation.
Withholds of Adjudication and Probation?
Florida Statutes 948.01(2), allows the trial court judge discretion to withhold adjudication of guilt when it appears to the court that a defendant is not likely again to engage in a criminal course of conduct and that justice and society do not require that the defendant be sentenced to jail. The Statute reads:
If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt. In either case, the court shall stay and withhold the imposition of sentence upon the defendant and shall place a felony defendant upon probation. If the defendant is found guilty of a nonfelony offense as the result of a trial or entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld, the court may place the defendant on probation. In addition to court costs and fees and notwithstanding any law to the contrary, the court may impose a fine authorized by law if the offender is a nonfelony offender who is not placed on probation. However, a defendant who is placed on probation for a misdemeanor may not be placed under the supervision of the department unless the circuit court was the court of original jurisdiction.
In felony cases, probation must be imposed if adjudication is to be withheld. In misdemeanor cases, probation is discretionary.
General Conditions vs. Special Conditions?
There are two types of conditions of probation: “general conditions” and “special conditions.”
General Conditions are inherent and do not require the judge to orally state the conditions on the record at sentencing; they are standard conditions in probation. Some general conditions include: (1) reporting to the probation within a specific time, (2) permitting probation officers to visit the defendant’s home, (3) having no new violations of the law, (4) paying restitution, (5) avoiding certain people engaged in criminal activity, (6) random drug testing, etc.
Special conditions are not enumerated by statute, but are conditions imposed by the judge on the record which relate to the circumstances of the charged offense. The court must impose the special terms and conditions by stating the conditions on the record at sentencing and including the terms and conditions in the actual written order.
Technical vs. Substantive (New-Law) Probation Violations:
Violation of Probation in Florida must be done willfully and must be a substantial noncompliance with any terms or conditions of probation. There are two different types of violations: “technical” violations and “substantive” violations.
A technical violation occurs when the defendant fails to comply with any of the general or special terms and conditions of probation after being placed on probation. Examples of technical violations failing to report to probation on time, failing to pay restitution, failing to pay fines and/or court costs or costs of investigation, failure to complete DUI school, failure to complete community service hours, changing contact information without notifying probation officer, leaving the jurisdiction, etc.
A substantive violation of probation arises when, while on probation, a defendant commits a new crime or offense. Even when the new-crime violation is dismissed, dropped, or beat at trial, attorneys for the State may still be able to prove the criminal offense at a VOP hearing. This is because the rules in VOP hearings are much different, as you will see below.
If you fail to comply with a term or condition of probation but made reasonable, good-
Different Rules in VOP Hearings:
The rules in VOP Hearings are far different than a normal criminal proceeding. This is because the law views offenders who are on probation as already being extended a privilege (as opposed to serving jail time). So a lot of the protections afforded to criminal defendants are not available in VOP Hearings. Some examples include:
- No right to a jury trial in a VOP Hearing
- No right to “beyond a reasonable doubt” standard (preponderance of evidence standard in VOP Hearings)
- No statute of limitations
- No right to a bond while waiting for a VOP Hearing
- Hearsay is admissible in VOP Hearings
- No 5th Amendment protections against self incrimination (you can be forced to testify)
Possible Penalties for Violating Probation in Orlando Florida?
There are 3 possible outcomes in a VOP Hearing: (1) Probation is reinstated; (2) Probation is modified; or (3) Probation is revoked (worst case scenario).
The court may find no violation of probation and will reinstate the original terms and conditions of the probation. Alternatively, the court may find a modification of probationary terms and conditions is necessary and will modify your probation.
In the worst case scenario, your probation will be revoked. Upon the revocation of probation or community control in Orlando, the court may impose the maximum sentence which could have originally been imposed.
The Modarres Law Firm is ready to assist you on the best course of action to help guide you through the probation process. Let us help mitigate any possible penalties you may be facing for violating probation.
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