David M. Edelstein, P.A.

Miami Probation Violation Lawyers

A judge may order you to comply with a wide range of conditions if you plead guilty and are placed on community control or probation in Miami, Florida. These are known as conditions or terms of probation. Violations of probation in Florida are when a defendant willfully and substantially violates one or more of these conditions of supervision. If you are facing allegations of violating probation or community control, call the experienced Miami probation violation lawyers of The Edelstein Firm. You can count on us for skilled legal representation in your probation violation case. Our lawyers will work aggressively to obtain the best possible outcome at your hearing.

Types of Probation Violations

There are two types of probation violations under Florida law. There are substantive violations and technical violations. Technical violations are violations other than picking up a new criminal charge after being placed under supervision, usually by a failure to comply with a specific general or special condition. Examples include a failure to complete community service hours, meet with their probation officer, obey a curfew, attend a program, complete court-ordered alcohol or substance abuse treatment, or attend NA or AA meetings. Before being arrested for a technical violation, the probation officer usually submits an affidavit to the court alleging the violation and lets the judge decide whether the defendant should be arrested or given a notice to appear in court.

A substantive violation is when the defendant has actually been charged with committing a new offense after being placed under supervision by the court. In this situation, the defendant faces possible criminal penalties for the VOP and the new criminal charge if convicted. The prosecutor has a much lower burden of proof in the VOP case to prove that you committed the new crime. The prosecutor only has to prove that the law enforcement officer had probable cause to arrest you for the new criminal offense In addition, a judge, not a jury, will decide whether you committed the new crime (this is also true for technical violations). You are literally at the mercy of the judge. This starkly contrasts with the new case, where a jury will decide whether you are guilty of committing the new crime, and the prosecutor must prove at trial that you committed it beyond a reasonable doubt.

A person can be arrested for both a substantive violation as well as for a technical violation.

Pretrial Release and Bail in Probation Violations

If a defendant has been arrested for a probation or community control violation, chances are the court will not grant the defendant bail before the violation hearing. Generally, there is no right to bond/bail when charged with violating court supervision. This is usually at the court’s discretion, although in some instances (e.g., sex offenders) the judge must make specific findings before granting bail/bond.

Procedural Differences in Probation Violations

Regardless of whether the violation is a technical or substantive one, there are significant differences in procedure between a VOP and a typical criminal case. In particular, VOP hearings require a lower burden of proof. VOP's and community control violations differ from other criminal charges in several important ways. Typically, when someone is charged with a crime, the State has the burden of proving the charge against them beyond and to the exclusion of every reasonable doubt. The court treats community control and VOP's differently because the defendant has already been sentenced to probation or community control for the original charge. A violation is an allegation by a probation officer that the defendant under supervision has violated the rules of supervision either by committing a new crime or by breaking other rules, e.g., violating a curfew or testing positive in a drug test. Because of this, the standard of proof the State has to meet to prove a probation violation to the court is weaker. In a violation hearing, the State only has to prove the defendant violated the terms of supervision by a preponderance of the evidence. Also critically significant is that the judge decides whether you violated the terms of your supervision—not a jury. For the judge, however, to find you guilty, they must find that it is a willful and substantial violation.

Your Rights in a Probation Violation Hearing

Probation violation charges can result in a county jail time or prison sentence. You should know your legal rights to minimize the chances of receiving severe punishment for a VOP. Those rights include several, but not all, of the rights you are entitled to when you are facing prosecution for an ordinary crime:

• Written notice of how you allegedly violated your probation (VOP affidavit by a probation officer)
• The right to have an attorney represent you
• The right to cross-examine the State’s witnesses
• The right to present your witnesses or evidence
• The right to testify on your behalf
• The right to not testify and not have this held against you

When you are facing a probation violation hearing in Miami, you should consult with an experienced criminal defense attorney who is experienced in helping clients understand their rights.

Punishment for Probation Violations

In general, VOP's are punished based on the seriousness of the alleged violation as well as the nature of the violation. Substantive probation violations are usually punished more severely than technical ones. Rather than a punishment intended to rehabilitate a defendant or protect society, probation in Florida is seen as a privilege given by the State. In essence, when a judge places you on probation, they take a chance on you instead of just sentencing you to jail. Consequently, most judges in Miami-Dade County have little sympathy for people they find guilty of substantive violations and will punish them harshly.

You face severe consequences if you are charged with a technical or substantive VOP or community control violation. Even if a judge finds you guilty of a technical violation of probation requirements, they can sentence you up to the maximum sentence you could have received before you were placed on probation. People found guilty of VOP's and community control violations will generally face the same punishment they originally faced before being placed under the court's supervision. For example, if the defendant were originally charged with grand theft, a third-degree felony, the judge would have the power to sentence the defendant to up to five years in state prison for violating the conditions of probation/community control. Additional penalties upon revocation of probation can include a permanent conviction on your criminal record, fines and an extended term of probation.

Additional Violation of Probation Resources

Miami Circuit Office of Department of Corrections – Information about the Miami Circuit Office and a list of probation offices.

United States Probation Office (Miami) – Detailed information about the U.S. Probation Office in Miami with phone numbers and addresses.

Contact an Experienced Miami Probation Violation Attorney

If you have been accused of violating your probation terms in Miami-Dade County, your best option is to immediately retain an experienced Miami probation violation attorney to protect your rights and competently defend you. The Firm’s attorneys have represented hundreds of clients charged with VOP's and community control violations.

You can count on our attorneys to represent you throughout the entire VOP process. You might be able to avoid time in jail and get your probation reinstated with an experienced attorney on your side.