Probation is an alternative to incarceration. In other words, a judge will sometimes sentence you to probation instead of sentencing you to jail or prison.
Probation typically involves regular meetings with a probation officer as well as compliance with certain terms of probation. If you violate probation, incarceration could be the result.
What Happens If Florida Accuses You of Violating Probation: The Procedure
If your probation officer thinks you’ve violated your probation, they’ll probably initiate the probation violation procedure by submitting an Affidavit of Violation of Probation to the court. This is a sworn statement by the probation officer stating that they have a reasonable belief that you violated your probation. The court will review the Affidavit and determine whether it has merit. If it does, the judge will issue a warrant for your arrest.
In a probation violation proceeding, you will face a serious diminution of the rights that you enjoy in a criminal trial, including the following:
- You have no right to a jury trial for probation violation. The judge will decide both your guilt or innocence and your penalty.
- The judge is much more likely to deny bail while you wait for your probation violation hearing—especially if your probation arose out of a felony charge.
- The court will use the much lower “preponderance of the evidence” standard instead of the “beyond a reasonable doubt” standard used in criminal trials. This makes it much easier to find you guilty of violating your probation.
- The prosecution can use hearsay evidence against you.
- There is no statute of limitations on a probation violation. You are not safe no matter how much time passes.
- You have no right to “take the fifth.” In other words, you can be compelled to answer questions at the hearing even if the answers would incriminate you.
- Your progress towards the end of your probation period stops while probation violation proceedings are pending. In other words, probation violation charges stop the clock on your probation period until they resolve.
All of the foregoing factors make it much easier for a court to find you guilty of a probation violation than to convict you of a crime.
If your probation violation consisted of the commission of a new crime, you would likely resolve your case through plea bargaining. A plea bargain can resolve both charges, the old and the new, with one plea and one sentencing.
How Much Jail Time Do You Get for Violating Probation?
How much jail time applies for violation of probation? The short answer is that this decision depends on a number of factors that vary from person to person. Probation violation jail time can vary from none at all to years or even decades. In the case of a felony probation violation, jail time is proportionate to the length of the possible sentence for the original charge. The more serious the underlying offense, the more likely you will face years of jail time.
But prison is not the only option. If the judge finds you guilty of violating probation, they have several options to choose from for sentencing.
Continuation of Probation on the Same Terms
When a judge simply continues probation, they are choosing not to impose any penalties for your violation. Probation continues on the same terms as before, despite the probation violation. Such leniency does not occur all that frequently. When it happens, the only punishment is a stern lecture from the judge.
Modification of Probation
Modification of probation is a popular remedy for a probation violation. The judge essentially modifies the terms of probation to make them harsher penalties than the original terms. Increasing the harshness of your probationary terms serves as your punishment for the violation. The judge might require closer supervision, add terms to the probation, extend the number of community service hours, or lengthen the period of probation.
First-time low-risk violation of probation
If you committed a first-time, low-risk probation violation and you do not qualify as a Violent Felony Offender of Special Concern, the court must modify or continue probation. It cannot revoke your probation and send you back to jail to serve the remainder of your sentence. A court can, however, modify your probation and sentence you to up to 90 days in jail.
Revocation of Probation
In a worst-case scenario, the judge can revoke your probation, which means you will probably go to jail or prison. As mentioned above, a judge cannot revoke probation for minor probation violations.
If your initial offense was not serious enough to warrant incarceration, you might even be able to avoid incarceration despite revocation. Revocation is the most common remedy when someone violates probation by committing a new crime. When a court revokes your probation, the judge can:
- Sentence you to the full incarceration period that they suspended when they placed you on probation instead; or
- If the court finds you to be a danger to the community, or if you qualify as a Violent Felony Offender of Special Concern, Florida allows a court to incarcerate you for the maximum period available for your underlying criminal charge. In a worst-case scenario, this could mean decades in prison.
Special Case: Committing a New Crime While on Probation
If Florida charges you with a new crime while you are on probation, you have two new problems. First, Florida will have to resolve the new crime either at trial or through plea bargaining.
Second, the new crime will become the basis of a probation violation charge against you. In some cases, this will be enough to classify you as a Violent Felony Offender of Special Concern. In a worst-case scenario, you could end up going to jail or prison for two consecutive terms of incarceration—one for the original charge and one for the new crime that violated your probation.
Some common defenses against probation violation charges include:
- The offense was a non-criminal traffic infraction;
- You were unaware of the presence of illegal drugs on your shared premises;
- The probation officer accused you of a curfew violation simply because you did not answer your door late at night;
- Inability (rather than unwillingness) to pay restitution or court fees; or
- You were simply inept and did not intend to violate the terms of your probation.
To successfully prosecute you for violation of probation, however, the prosecutor must prove that your violation was “willful and substantial.” Proving this element can be tough in some instances, so the last defense is used often.
Take Action Now
If you or a loved one is facing jail time for violating probation, there is no room for delay. Felony probation violation jail time, in particular, could take years of your life. You need to understand the charges against you and take action as soon as possible.