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November 15, 2010

A Guide to Probation Violations

Probation violations are a common and very serious problem for defendants lodged in the criminal justice system. The jails and prisons are replete with people who violated the terms of their probation. Any Miami criminal attorney will tell you that defending probation violations is a difficult task. First and foremost, probation violation cases can arise from substantial or technical violations. Substantial violations are by far the most serious of the situations. A substantive violation exists when a person currently on probation is arrested for a new offense. A technical violation arises when a defendant fails complete the conditions set forth that need to be completed during the length of probation. Technical violations include failing to pay restitution, failing to complete community service hours, failing to complete court ordered programs or failing to pay court costs. In either case, a defendant is subjected to maximum sentence he or she was facing for the charges on which the original plea was entered.

When a probation officer becomes aware that a defendant violated probation, he or she will file a probation violation affidavit and have the judge presiding over the case execute an arrest warrant. If a defendant becomes aware that a probation violation affidavit has been filed, the best course of action is to hire a criminal defense law firm that regularly handles these types of cases. An experienced criminal lawyer will place the case on calendar and attempt to resolve the case with the prosecution before an arrest is made. If an arrest warrant is served the probationer will be taken into custody and appear at a bond hearing. The judge presiding over the bond hearing will set the case in front of the court that initially placed the defendant on probation. The defendant will be brought before that court where one of two things will happen. The case will resolved on that date or case will be set for a probation violation hearing.

A probation violation hearing is completely distinguishable from a jury trial. In a jury trial, a jury is made up of six or twelve members of the community who will be the trier of fact and determine a person's guilt or innocence. A judge is the trier of fact in a probation violation hearing and determines a person's guilt or innocence. The standard of proof in a jury trial is beyond a reasonable doubt, while the standard in a probation violation only requires the evidence to shock the conscience of the court. The judge only has to have good faith basis that a probationer violated the terms and conditions of probation. Probation violations are serious because judge can sentence a defendant to the maximum to the charges initially pled to in court. For example, if a defendant entered a guilty plea to burglary with an assault of battery or armed cocaine trafficking, a judge could potentially sentence a defendant to life in prison for violating probation.

Substantive violations are far more severe than technical violations. A sentence will be far more harsh for a defendant on probation for grand theft who then gets arrested for another crime of dishonesty. In the case of technical violations, courts are more lenient and may only require the defendant to extend their probation to complete the special conditions. On many occasions, probationers test positive for cocaine or marijuana. The severity of the punishment will many times depend on the county where the original crimes were committed. For example, in Miami-Dade County, defendants are often reinstated to probation while in other counties, prosecutors seek jail sentences. In sum, all probation violations are serious and the best way to defend these types of cases is early intervention by experienced defense lawyers.