Probation Defense Lawyer in Orange County, FL
Violation of probation (VOP) cases can have harsh consequences as any sentence that could have been originally imposed can be imposed upon a VOP conviction. VOP cases can be based on technical violations, new law violations or for financial reasons. Any VOP conviction will result in a permanent criminal record. People make mistakes, often times while on probation. I believe in fighting for a second chance. My goal is to do whatever is necessary to resolve your probation case with no jail and no criminal conviction. I have defended hundreds of probation cases. Once hired, I will:
- Review your entire court file;
- Obtain a copy of your VOP affidavit;
- Organize your defense;
- Immediately start negotiating with your prosecutor, and
- Do whatever is necessary to avoid a criminal conviction and prolonged jail sentence.
Bond Reduction Motions in Violation of Probation Cases
A violation of probation allegation case can cause you to remain in jail for weeks or months until your VOP case is resolved. Our first priority is to get you out of jail. We can file a ‘motion to set bond’ asking the court for your release. Our second priority is to keep you out of jail. Often times, for a minor violation or first violation, we can have the court reinstate your probation with minimal or no additional sanctions.
If your violation of probation warrant is a no-bond warrant you have the right to request the court to set a bond. It is important to note that you are not entitled to a bond as a matter of law for any Florida violation of probation case. However you do have the right to petition the court for a bond hearing where you have the right to present facts and arguments in favor of setting a reasonable bond. Some factors the court may consider in setting a bond are:
- The nature and circumstances of the violation of probation.
- Your family ties and length of residence in the community.
- Your employment history, financial resources, and mental condition.
- Your past and present conduct including any prior convictions.
- Any previous flight to avoid prosecution or failures to appear.
- The nature and probability of danger your release poses to the community.
An Overview of the Violation of Probation Process
A Violation of Probation case starts in one of three ways: with a notice to appear, a bondable warrant or a no-bond arrest warrant. While a VOP case is initiated by the probation officer sending the court a VOP affidavit or a new arrest, it is the judge who always has the final say as to whether the probationer will be sent a notice to appear or arrested and what bond, if any, will be ordered. A description of the judge’s three options is below:
Notice to appear
A letter mailed to the probationer ordering their appearance in court to answer to VOP allegations. This letter is sent in lieu of a formal VOP arrest and is most commonly issued in minor or misdemeanor VOP allegations or allegations relating to only financial obligations. This is obviously the most preferred method of beginning the VOP process.
Bondable arrest warrant
This is issued when the judge VOP just orders the probationer’s arrest but also assigns a monetary bail along with the arrest warrant. The probationer is arrested and allowed to bond out of jail and remain out of jail during the pendency of the VOP court case.
No-bond arrest warrant
The most severe of the three avenues to start he VOP process. This occurs when the judge issues a warrant that requires the probationer to remain in jail during the VOP case. This occurs most often when the probationer is on felony probation, commits a new law violation or has a second or subsequent VOP case.
Technical Violations & Substantive Probation Violations
VOP Affidavit
The charging document in any VOP proceeding. Much like the Information in adult court or the Petition for Delinquency in juvenile court the VOP affidavit is the charging document for any VOP proceeding and must allege specific allegations of misconduct. These allegations can be in the form of a technical violation, new law violation or a failure to meet a financial obligation.
Technical Violation
A violation of the rules of probation and not a separate criminal offense. Not performing community service, being kicked out of drug counseling and missing a probation appointment are all examples of technical violations.
New Law Violation
A violation based on a new criminal offense. Being arrested for DUI or being given a Notice to Appear for shoplifting are both examples of new law violations. A new law violation is more serious than a technical violation.
Financial Obligation
Called a ‘failure to pay’ violation, this is technically a technical violation and is the least serious type of violation. Generally if the VOP is for a financial obligation alone, payment– even late payment– will satisfactorily resolve the VOP.
The Violation of Probation Hearing and Local Procedures
There are several major differences in a VOP proceeding. Unlike a new criminal offense, in a VOP proceeding you are not entitled to a bond, you are not entitled to a jury trial and the standard of evidence very low–preponderance of the evidence. So the judge can keep you in jail during the VOP on allegations alone.
Orange County Felony Violation of Probation Procedures
As of January 1, 2016 all Orange County felony VOP cases are being heard before the original trial division. There are no longer separate felony VOP only divisions.
Orange County Misdemeanor Violation Probation Procedures
Orange County misdemeanor violation of probation proceedings are heard before the original misdemeanor trial division. Therefore anyone sentenced to probation by an Orange County misdemeanor trial judge will have his or her VOP case heard before the same judge that placed him or her on probation. This can be a good or bad thing depending on your original sentencing judge.
Seminole County VOP Cases
Seminole County violation of probation charges are prosecuted differently than Orange County. There are four felony trial divisions and five misdemeanor trial divisions and all nine Seminole County criminal judges handle their own VOP caseload. So in Seminole County all probation cases are handled by the original sentencing judge.
Violation of Probation Penalties in Florida
Upon a violation of probation conviction the court can sentence the probationer to any lawful sentence. The sentence can exceed what was previously imposed. So an 18-month probation sentence on a simple drug charge can now turn into a five-year prison sentence. The judge can give the maximum or minimum or anywhere in between upon a VOP conviction. Also know that being convicted of a violation of probation requires the judge to adjudicate you guilty of the underlying offense. A felony conviction will require you to register with the Sheriff’s Office in the county of your residence as a convicted felon and will cause you to lose your civil rights. Any VOP conviction, felony or misdemeanor, will forever disqualify you from ever having this conviction sealed or expunged from your criminal history.
Alternative Sanctioning Program
FL statute 948.06, allows the chief judge to submit an order which would allow VOP clients (except those who committed new law violations) to participate in a program with sanctions set forward by the PO in lieu of a formal violation report. The judge decides which violations are eligible, which sanctions can be imposed and the process. The PO can choose to elect the client for the program and the client can either waive or elect to participate. If they waive then they forfeit certain rights (right to trial etc.). If they elect to participate then the PO may submit the recommended sanctions and the court can accept or reject.
Judge may establish an alternative sanctioning program where they may enforce specified sanctions for certain technical violations. (No new law violations). The judge must issue an order specifying:
- Eligibility
- Technical violations eligible for the program
- Sanctions that may be recommended by PO
- The process for reporting technical violations
The offender may:
- Waive participation which allows the PO to submit a violation report
- Elect to participate after receiving written notice of the technical violation and the evidence against them, admit the violation, agree to comply with recommended sanction and waive the right to be represented by legal counsel
- Require the state to prove his/her guilt
- Subpoena witnesses and present evidence of defense to the judge
- Cross examine witnesses
- Receive a written statement from a factfinder as to the evidence relied on the reasons for the sanction imposed.
Early Termination
Defendants sentenced to probation on or after October 1, 2019, can apply for early termination and be granted early termination or have standard probation converted to administrative probation if all of the following requirements are met:
Recent Florida Violation of Probation Case Law
Edwards v. State, 2D19-2734 (Fla. 2nd DCA 2020) Defendant’s failure to come to the open door at 5:30 a.m. does not establish that he was away from the house at that time. Failure to answer the door at a time when the average person is typically sleeping does not establish the person’s absence. The approach of simply knocking on the door and then declaring a violation when no one answers provides strong potential defenses to the person being supervised.
Shields v. State, 2D19-493 (Fla. 2nd DCA 2020) Upon violation of probation, where Defendant scores under 22 points, Court may not sentence the Defendant to prison absent a jury finding of dangerousness.
Hill V. State, 1D18-1355 (Fla 1st DCA 2020). Bare allegation that the Defendant was engaged in criminal activity in a particular residence insufficiently charges a violation of Condition Six.
Call Me
Simply put, my goal is to help you get out of jail and stay out of jail. If you or a loved one was recently arrested on a probation violation, please call my Winter Park criminal defense law firm at 407-740-7275 to discuss your options. I offer a free consultation so that I can learn about you, learn about your violation of probation case and determine how I can help.
Probation Defense Lawyer in Orange County, FL
Violation of probation (VOP) cases can have harsh consequences as any sentence that could have been originally imposed can be imposed upon a VOP conviction. VOP cases can be based on technical violations, new law violations or for financial reasons. Any VOP conviction will result in a permanent criminal record. People make mistakes, often times while on probation. I believe in fighting for a second chance. My goal is to do whatever is necessary to resolve your probation case with no jail and no criminal conviction. I have defended hundreds of probation cases. Once hired, I will:
- Review your entire court file;
- Obtain a copy of your VOP affidavit;
- Organize your defense;
- Immediately start negotiating with your prosecutor, and
- Do whatever is necessary to avoid a criminal conviction and prolonged jail sentence.
Bond Reduction Motions in Violation of Probation Cases
A violation of probation allegation case can cause you to remain in jail for weeks or months until your VOP case is resolved. Our first priority is to get you out of jail. We can file a ‘motion to set bond’ asking the court for your release. Our second priority is to keep you out of jail. Often times, for a minor violation or first violation, we can have the court reinstate your probation with minimal or no additional sanctions.
If your violation of probation warrant is a no-bond warrant you have the right to request the court to set a bond. It is important to note that you are not entitled to a bond as a matter of law for any Florida violation of probation case. However you do have the right to petition the court for a bond hearing where you have the right to present facts and arguments in favor of setting a reasonable bond. Some factors the court may consider in setting a bond are:
- The nature and circumstances of the violation of probation.
- Your family ties and length of residence in the community.
- Your employment history, financial resources, and mental condition.
- Your past and present conduct including any prior convictions.
- Any previous flight to avoid prosecution or failures to appear.
- The nature and probability of danger your release poses to the community.
An Overview of the Violation of Probation Process
A Violation of Probation case starts in one of three ways: with a notice to appear, a bondable warrant or a no-bond arrest warrant. While a VOP case is initiated by the probation officer sending the court a VOP affidavit or a new arrest, it is the judge who always has the final say as to whether the probationer will be sent a notice to appear or arrested and what bond, if any, will be ordered. A description of the judge’s three options is below:
Notice to appear
A letter mailed to the probationer ordering their appearance in court to answer to VOP allegations. This letter is sent in lieu of a formal VOP arrest and is most commonly issued in minor or misdemeanor VOP allegations or allegations relating to only financial obligations. This is obviously the most preferred method of beginning the VOP process.
Bondable arrest warrant
This is issued when the judge VOP just orders the probationer’s arrest but also assigns a monetary bail along with the arrest warrant. The probationer is arrested and allowed to bond out of jail and remain out of jail during the pendency of the VOP court case.
No-bond arrest warrant
The most severe of the three avenues to start he VOP process. This occurs when the judge issues a warrant that requires the probationer to remain in jail during the VOP case. This occurs most often when the probationer is on felony probation, commits a new law violation or has a second or subsequent VOP case.
Technical Violations & Substantive Probation Violations
VOP Affidavit
The charging document in any VOP proceeding. Much like the Information in adult court or the Petition for Delinquency in juvenile court the VOP affidavit is the charging document for any VOP proceeding and must allege specific allegations of misconduct. These allegations can be in the form of a technical violation, new law violation or a failure to meet a financial obligation.
Technical Violation
A violation of the rules of probation and not a separate criminal offense. Not performing community service, being kicked out of drug counseling and missing a probation appointment are all examples of technical violations.
New Law Violation
A violation based on a new criminal offense. Being arrested for DUI or being given a Notice to Appear for shoplifting are both examples of new law violations. A new law violation is more serious than a technical violation.
Financial Obligation
Called a ‘failure to pay’ violation, this is technically a technical violation and is the least serious type of violation. Generally if the VOP is for a financial obligation alone, payment– even late payment– will satisfactorily resolve the VOP.
The Violation of Probation Hearing and Local Procedures
There are several major differences in a VOP proceeding. Unlike a new criminal offense, in a VOP proceeding you are not entitled to a bond, you are not entitled to a jury trial and the standard of evidence very low–preponderance of the evidence. So the judge can keep you in jail during the VOP on allegations alone.
Orange County Felony Violation of Probation Procedures
As of January 1, 2016 all Orange County felony VOP cases are being heard before the original trial division. There are no longer separate felony VOP only divisions.
Orange County Misdemeanor Violation Probation Procedures
Orange County misdemeanor violation of probation proceedings are heard before the original misdemeanor trial division. Therefore anyone sentenced to probation by an Orange County misdemeanor trial judge will have his or her VOP case heard before the same judge that placed him or her on probation. This can be a good or bad thing depending on your original sentencing judge.
Seminole County VOP Cases
Seminole County violation of probation charges are prosecuted differently than Orange County. There are four felony trial divisions and five misdemeanor trial divisions and all nine Seminole County criminal judges handle their own VOP caseload. So in Seminole County all probation cases are handled by the original sentencing judge.
Violation of Probation Penalties in Florida
Upon a violation of probation conviction the court can sentence the probationer to any lawful sentence. The sentence can exceed what was previously imposed. So an 18-month probation sentence on a simple drug charge can now turn into a five-year prison sentence. The judge can give the maximum or minimum or anywhere in between upon a VOP conviction. Also know that being convicted of a violation of probation requires the judge to adjudicate you guilty of the underlying offense. A felony conviction will require you to register with the Sheriff’s Office in the county of your residence as a convicted felon and will cause you to lose your civil rights. Any VOP conviction, felony or misdemeanor, will forever disqualify you from ever having this conviction sealed or expunged from your criminal history.
Alternative Sanctioning Program
FL statute 948.06, allows the chief judge to submit an order which would allow VOP clients (except those who committed new law violations) to participate in a program with sanctions set forward by the PO in lieu of a formal violation report. The judge decides which violations are eligible, which sanctions can be imposed and the process. The PO can choose to elect the client for the program and the client can either waive or elect to participate. If they waive then they forfeit certain rights (right to trial etc.). If they elect to participate then the PO may submit the recommended sanctions and the court can accept or reject.
Judge may establish an alternative sanctioning program where they may enforce specified sanctions for certain technical violations. (No new law violations). The judge must issue an order specifying:
- Eligibility
- Technical violations eligible for the program
- Sanctions that may be recommended by PO
- The process for reporting technical violations
The offender may:
- Waive participation which allows the PO to submit a violation report
- Elect to participate after receiving written notice of the technical violation and the evidence against them, admit the violation, agree to comply with recommended sanction and waive the right to be represented by legal counsel
- Require the state to prove his/her guilt
- Subpoena witnesses and present evidence of defense to the judge
- Cross examine witnesses
- Receive a written statement from a factfinder as to the evidence relied on the reasons for the sanction imposed.
Early Termination
Defendants sentenced to probation on or after October 1, 2019, can apply for early termination and be granted early termination or have standard probation converted to administrative probation if all of the following requirements are met:
Recent Florida Violation of Probation Case Law
Edwards v. State, 2D19-2734 (Fla. 2nd DCA 2020) Defendant’s failure to come to the open door at 5:30 a.m. does not establish that he was away from the house at that time. Failure to answer the door at a time when the average person is typically sleeping does not establish the person’s absence. The approach of simply knocking on the door and then declaring a violation when no one answers provides strong potential defenses to the person being supervised.
Shields v. State, 2D19-493 (Fla. 2nd DCA 2020) Upon violation of probation, where Defendant scores under 22 points, Court may not sentence the Defendant to prison absent a jury finding of dangerousness.
Hill V. State, 1D18-1355 (Fla 1st DCA 2020). Bare allegation that the Defendant was engaged in criminal activity in a particular residence insufficiently charges a violation of Condition Six.
Call Me
Simply put, my goal is to help you get out of jail and stay out of jail. If you or a loved one was recently arrested on a probation violation, please call my Winter Park criminal defense law firm at 407-740-7275 to discuss your options. I offer a free consultation so that I can learn about you, learn about your violation of probation case and determine how I can help.
