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A violation of your probation can seem like a technicality, and maybe it is. It’s also a technicality that can have profoundly serious consequences under Florida law. Depending on the circumstances of your case, a defense attorney may be able to work out how to beat a probation violation in court or at least get its consequences reduced.
Probation Violation & Your Constitutional Rights
It’s particularly important for defendants to understand that when they go into a Violation of Probation (VOP) hearing in Florida, they do not enjoy many of the same constitutional rights and other legal protections that accompanied them at the original trial which led to the probation.
Why are violation of probation hearings difficult for the defendant?
The reason is simple–the defendant has already been convicted of the crime. By the letter of the law, the defendant should already be serving a jail sentence. Thus, when accused of a probation violation, the legal protections are significantly lower.
A prosecution’s burden of proof is the most significant distinction between the original trial and a VOP hearing.
- At the original trial, a criminal defendant must be proven guilty beyond a reasonable doubt. At a VOP hearing, it is only required the court be convinced it’s more likely than not that the defendant willfully and substantially violated their probation.
- Think of the difference this way–the court went from needing to be about 95 percent sure of guilt in the original trial to 51 percent sure in the VOP hearing.
- Furthermore, hearsay can be admitted as evidence against the defendant. Hearsay is an out-of-court statement.
- The fact hearsay has not been corroborated means it is inadmissible in a criminal trial. Not so in a VOP hearing.
- There is also no right to a trial by jury. That was done at the original trial. The verdict at a VOP hearing is in the hands of a single judge.
The combination of a lower bar for admissible evidence and a lower standard of proof can put a defendant in a difficult situation when accused of violating their parole.
The Defense: Willful & Substantial
Further up, we used the words willful and substantial to describe a probation violation. Those words were used because that’s what a violation must be for the judge to revoke probation.
For example, probations often come with conditions that the defendant be at home within a certain time period. Perhaps they have a 10 PM curfew. The probation officer comes to the house at 10:30 PM and knocks on the door. No one answers. The person is reported for a violation.
Technically, this is accurate. But what if the person was sleeping on the couch in their basement and didn’t hear the officer knock? It’s not the best of ideas for a released person to fall asleep in a place where they can’t hear a knock they know is coming. But is it really a willful violation of their parole? Is it a substantial violation of their parole? A defense lawyer can make a strong argument that it is not.
Another example might be a requirement that a defendant get a job. In our current moment, with employers desperately trying to find workers, that probably won’t be too hard. But we’ve also experienced situations where even entry-level jobs were not easy to come by. It’s possible a defendant may not be in willful violation of their parole by not being employed.
How to Beat a Probation Violation at a VOP Hearing
The Violation of Parole hearing will have similarities to the trial. Evidence will be presented, and witnesses will be called. Your lawyer will have opportunities to cross-examine those the prosecution presents to the court. Although, as noted above, unlike the original trial, the judge will make the final decision.
Even in cases where a defendant’s violations were willful and substantial, the role of the attorney is crucial in persuading a judge to show leniency. The willful and substantial framework covers a wide range of possible actions. The defendant that skipped a couple hearings with their probation officer might have a better shot at leniency than the one that immediately began associating with known criminals.
Of course, the best defense of all against a probation violation is to simply win a not guilty verdict at the original trial.
At The Law Offices of Jason K.S. Porter, P.A, that’s what we aim for. Whether the case in question is a criminal trial or a VOP hearing, we fight hard for our clients because we know their freedom, reputation and future are on the line.
If you still have questions about how to beat a probation violation, call us today at (904) 701-0591 or contact us online to set up an initial consultation.