Understanding a Violation of Probation Charge

by Aaron Delgado
02/15/19 (Updated: 04/18/19)

Rock, Paper, Scissors: Imprisonment, House Arrest, Probation

What kind of self-respecting criminal defense attorney would tell their client to TAKE JAIL or ask the prosecutor for a little bit more time for their client? We, the accomplished, aggressive, and experienced trial attorneys at Delgado & Romanik, PLLC, that’s who!

When you have over 110 years of combined legal experience and have represented thousands of people across the State of Florida, you get wise to some of the counterintuitive aspect of the criminal justice system. Here are two areas of the system where a counterintuitive path is the way to go.

Why “Paper” is Almost Always a Bad Choice

Ask any experienced criminal defense attorney to play a friendly game of Rock, Paper, Scissors (or its successor Rock, Paper, Scissors, Spock, Lizard) and I promise you none of us will choose paper. That is because “paper” is one of the nicknames given to a probationary sentence, as opposed to incarceration in jail or state prison.

Many experienced criminal defense attorneys know “paper” to be what some prosecutors and judges jokingly call “a delayed entry program.” Why? Because very few people are successful on probation, so most end up back where they began only to face more jail or prison time than their initial charge.

This is why you might overhear me asking a prosecutor for a short jail sentence as an alternative offer: I know that, all things being equal, a short jail sentence or a few months more in prison is almost always better in the long run than “paper.”

What is Probation?

Probation is a form of punishment where you agree to abide by a certain set of rules, called conditions, which are set out in writing at the time you enter your plea. Depending on the charges, probation can range from a matter of months to an entire lifetime. The length of probation will be set at the time you enter your plea, although you can ask for early termination of probation at certain points.

Depending on your judge, local traditions, and the terms of your case, you may be eligible to get off probation at the half way point or once you have completed all the conditions of your probation, such as paying back restitution. If you are eligible, your probation may end automatically or you may have to file a Motion for Early Termination.

If you, or a loved one, would like more information about getting probation terminated early or modifying the conditions of probation, contact us and we can review your options at no charge.

Probation Rules

Once you are placed on probation, you will most likely have to abide by the following rules until your probation is over.

1. Pay Your Fines

That includes all fines, court costs, and cost of supervision. In most parts of Central Florida, supervision usually costs $55 per month. However, a judge can waive the costs of probation for good cause.

2. Report Monthly

You will likely have to report to your assigned probation department monthly. That may or may not include a face-to-face interaction with your Probation Officer (PO).

3. Submit to Random Tests

Most likely, you will have to submit to random alcohol and/or drug screenings. These screenings will be done at your own expense.

4. Avoid Alcohol, Illegal Drugs, and Prescription Drugs You Have Not Been Prescribed

When it comes to alcohol, there are different types of probation and some do not permit the consumption any alcohol. Generally, felony probationers are allowed some alcohol so long as it is not “to excess”. However, no alcohol is sometimes ordered as a condition of probation.

If you are currently taking prescription drugs that have been prescribed to you, you will need to keep your Probation Officer informed about your medication. If you are prescribed medicine after the start of your probation, you must report that to your Probation Officer in a timely manner. That means as soon as you can, not after you fail a drug test.

Marijuana is a medicine. If you have valid authorization to use medical marijuana in Florida (and that means Florida, not some other State), you can still use your medication while on probation. The same goes for opiate “maintenance” medications. If you use either medical marijuana or a narcotic medication, make sure to be upfront with your Probation Officer and give them the appropriate paperwork.

5. Avoid Criminal Associations

Refrain from associating with people or going to places associated with criminal activities. Even if this is not a condition of your probation, it is a good way to stay out of trouble.

6. Say “Bye” to Firearms

Even if you are not a convicted felon, you are not allowed to posses a firearm while on probation.

7. Report Contact with Law Enforcement

Again, report any contact with law enforcement officers to your Probation Officer - even the slightest instances of contact, such as riding in a car with someone when they got a ticket for speeding.

8. Travel Restrictions

You may be restricted from leaving the county without permission.

9. Search Privacy

When you are on probation, there may be a lower expectation of your personal privacy during searches.

Each and every one these conditions should be explained to you before you enter your plea and thus should not be a surprise. But as you can tell, they are comprehensive and they are strict.

What Happens If You Violate Probation

If you violate a condition of probation, you will be charged with a Violation of Probation (VOP). Typically, if you are arrested on a VOP, you are taken to jail and held without bond until you are taken before a judge.

Under normal circumstances, someone who is arrested has a right to a reasonable bond, but that is not the case with a VOP. There is no right to a reasonable bond because Florida law defines a VOP as a “mere” sentencing proceeding that relates back to the original charge.

Also, depending on the offense you were on probation for (or your criminal history) you may not be allowed any kind of bond at all unless your lawyer can convince the judge of certain facts. Many times, bond motions in VOP cases are used to get you in front of the judge to quickly resolve the case - not because your lawyer thinks you have a great shot at bond.

Unlike a criminal case, there is no right to a jury trial in a VOP. Nor do you have the right to remain silent. Hearsay is admissible, although it cannot be the sole basis for violating your probation. If the judge determines you have willfully and substantially violated the terms of your probation, you face up to the statutory maximum for the original offense you were on probation for.

Remember that score sheet – you will get an additional point for the Violation status. This means you are looking at more time than you were originally facing. That’s right - you are back to the beginning of the vicious loop and now it can be worse!

While you may get credit for any time you spend in jail on a violation of probation, you get no credit for the time you were on probation. At this point, some people still do not learn and begin to beg for community contro (CC), aka house arrest. House arrest is probation on steroids, with even more rules and a lower success rate.

How much jail time for a probation violation?

How Your Attorney Should Help

A good, ethical attorney should have a heart-to-heart talk with any client who is facing a VOP or who is about to enter a plea and is asking for probation. A good attorney should know if you have been successful on probation in the past or if you are doomed to violate your probation.

If you have a drug or alcohol issue, now is the time to be honest and get help. Addiction is a hard battle and the added stress of going to prison, on top of the normal pressures of recovery, can be on overwhelming obstacle. A good attorney is not just interested in closing the case quickly – they should be looking at how to best help you avoid any further involvement in the legal system. Sometimes this can mean a bit of tough love or it may seem like your attorney is not working “for you” because they are telling you to take some jail time.

In our cases, nothing could be further from the truth. We want to help our clients avoid the traps the government places in their path to freedom. We do not want to help clients be part of the delayed entry system. We want to be the Rock smashing chains, not the smothering Paper!

Understanding Gain-Time

Gain-time is an incentive for good behavior. In the past, Florida’s inmates could receive a parole and be released much earlier into their sentence than initially planned. However, the Florida legislature eliminated parole for modern offenses. Still, defendants may be offered a chance to get released earlier by behaving themselves and working during their sentence. This incentive is referred to as gain-time, which the Department of Corrections (DOC) can award or remove from a prisoner under their jurisdiction.

While DOC can and does award enough gain-time that an inmate might be eligible for significantly earlier release, the Legislature passed what was called the “Truth in Sentencing Act,” which requires defendants to serve almost their entire sentence. Currently, an inmate must complete at least 85% of their sentence even if they accrue extra gain-time.

Gain-time is not something a defense attorney can or should promise a client; many clients want to know how much time they will really do. Unless someone is being sentenced to an offense for which gain-time cannot be award, we generally tell a client they will serve no less than 85% of their sentence. Generally, offenses which cannot be awarded gain-time are limited to gun-related offenses and certain sexually motivated offenses. It is also common misconception, even among lawyers in the criminal justice system, that drug offenses with mandatory minimums require the sentence be served day for day. Currently, this is not the case.

As a general rule of thumb, DOC has greater authority over inmates than most people imagine. For example, when it comes to gain-time, the judges and the State Attorneys cannot promise, award, or otherwise alter gain-time or the ability to earn gain-time directly. But before you decide to tell the sentencing judge what you really think about the justice system (or invite them to perform a sex act) remember that detainers, holds, and contempt sentences can thwart early release by affecting things like gain-time.

Experienced Criminal Defense Lawyers Can Help

DOC is governed by administrative rules and regulations. If you want to accomplish anything with an inmate under sentence, you need an attorney with experience dealing with the Florida Department of Corrections and their administrative procedures. Do not think your local judge can enter an order granting a furlough or telling DOC what prison to send someone to. DOC has their own attorneys who will actively oppose any attempt by a local court or attorney to infringe on their authority. If you, or a loved one, needs help dealing with an issue involving a DOC decision that is affecting a release date or your civil rights, call or write to us immediately.

Remember the earlier example of asking for MORE time. A local cheap trick is for a prosecutor to offer 29 days in county jail – because at 30 days the defendant would get a 5 day credit awarded. So by asking the judge for 30 days, you are actually helping your client get out a few days earlier.

Little tricks of the trade like those cannot be learned in law school, and that is why hiring an experienced attorney with a lot of courtroom experience is so important. Being an effective criminal defense attorney is not just about academic achievements, slick advertisement, or golfing with the right people. It is about looking for every angle, every inch, every drop you can squeeze out for your clients’ benefit. At Delgado & Romanik, PLLC, we are proud to be grinders; we are proud of our ability to outwork the other person in the interest of our client.

These two small areas, of the thousands that exist in the criminal justice system, show how effectively a creative and compassionate attorney can help make your encounter with the justice system as easy as possible. If you are interested in speaking to a team of attorneys recognized for their excellence and integrity by their peers and the judiciary system, contact Delgado & Romanik, PLLC.

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