Conditions Of Your Probation: Myths, Rules And How To Avoid A Violation

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Nobody wants to go to jail.

As we all know, even people who are convicted of crimes are not automatically sent to jail for months or years. Many times, people who, perhaps, have an otherwise clean record or whose crimes were not especially serious, can remain free so long as the meet certain criteria for a proscribed period of time. This is called probation.

Probationers charged with felonies in Escambia, Santa Rosa, Okaloosa and Walton counties are managed by the State Department of Corrections (the DOC). Each county has separate DOC offices. Misdemeanor probationers are handled by their respective counties.

Probation may not be easy for some folks to follow. The offender gets to remain free, go to work, provide for his or her family and oftentimes may have to pay restitution for the crimes they committed. But if they don’t follow the special
and/or standard conditions of their probation, they can be violated, arrested gain, and charged with Violation of Probation (VOP).

In many cases in Escambia County, once charged with VOP, the person can be taken to jail and held without bond until they are taken before a judge. Under normal circumstances, someone who is arrested has a right to a reasonable bond, but that’s not the case with a VOP. There is no right to a reasonable bond in a VOP because Florida law defines a VOP as a “mere” sentencing proceeding stemming from the original charge.

Let’s say, hypothetically, someone is originally arrested for felony possession of marijuana. That person might be put on probation for two years. The term of his probation would likely include:

  • Paying fines, court cost and cost of supervision. In Escambia County, supervision usually costs $55 per month;
  • Reporting to the probation department monthly, usually the first through the fifth of each month. This may or may not include face to face contact with their probation officer (PO);
  • Submitting to random alcohol/drug screening at their own expense;
  • Not using any alcohol, illicit drugs or prescription drugs that aren’t prescribed to them. If they are prescribed medicine, they must report that to the probation officer;
  • Refraining from associating with people or going to places associated with criminal activities;
  • Also, anyone on probation, even if they are not a convicted felon, is not allowed to possess a firearm while on probation;
  • Report any contact with law enforcement officers, even the slightest contact, e.g. riding in a car with someone who got pulled over.

Not adhering to any one of these conditions can result in re-arrest and serious consequences. Depending on the Judge, those consequences may include jail or prison time. It doesn’t matter how long someone has been on probation. If a person is in their 23rd month of a 24-month probation, if they’ve violated their probation, they may be sent to jail or prison for the same term of incarceration they could have been sentenced, and sometimes more, for the original charge.

Myths

Unlike some states, Florida does not give credit for the time spent on probation, nor is the jail or prison time limited to the amount of time the person has remaining on his probation. This is a common myth. However, sometimes, with the help of a competent attorney, some defendants may be able to persuade the Judge to reinstate them to probation if they’ve taken all steps possible to mitigate their violation.

A Few Suggestions For Avoiding A VOP

Probation is expensive. In addition to the $55 monthly fee, presumptive breath tests for alcohol are roughly $15 each; urine screenings for drugs are at least $25 each. If someone’s probation requires them to be electronically monitored, that fee is roughly $105 per week depending on what county they are in.

If someone is genuinely struggling financially and can’t pay their cost of supervision or their court cost, they should tell their probation officer. The probation officer may submit a request to the court to either lower the costs of supervision or even ask the court to waive it.  Their lawyer can do this at the time of their sentencing.

A judge may also impose a “lien” for court costs or fines if a person cannot pay these costs. If a lien is imposed the probationer must set up a payment plan within a set period of time from sentencing otherwise their driver’s license privileges will be suspended. To qualify for a lien, the probationer must be looking diligently for work, have a job or be going to school.

The “System” Can Create a Vicious Circle For Some

As a rule, people do not go to jail for not being able to meet the financial obligations of probation. The standard for a violation of probation is it must be “substantial and willful.” See the Florida supreme Court case of State v. Carter, 835 So.2d 259 (Fla. 2002) for the definitions of “substantial and willful.”

Someone who is on probation should not associate with convicted felons or “hang out” at certain bars or other locations that are known places where illicit substances are sold.

This brings up reporting interaction with police. Every month people on probation check in with their probation officer and fill out a questionnaire. One of the questions is about whether they have come into contact with a law enforcement officer.

Sometimes, this question sets off alarms. People may be afraid that if they report having interacted with a police officer they will automatically violate their probation.

However, if someone fails to disclose contact with police to the probationer may be considered as being less than truthful with their PO, even for not revealing a simple civil infraction/speeding ticket. This may subject them to
being violated for not telling the truth to their probation officer. It’s almost as bad as getting arrested for a new offense.

Be honest. Simply reporting a crash or civil infraction, will not get a person’s probation violated. On the other hand, if a probationer gets a criminal traffic citation or even a notice to appear on a criminal misdemeanor, say, for example, for misdemeanor marijuana possession, they most likely will have a VOP warrant issued against them.

Failing a drug or alcohol test is almost certain to land a probationer in jail with a likelihood of not being given a bond.

Technical Violations

There are occasions when someone has technically violated probation but their PO will set up a meeting with the Judge where the probationer will be “counseled” that they need to “straighten up,” and if this same behavior
happens again, their probation will be violated.

Most people don’t hire an attorney relating to these technical violations but it might be a good idea to speak to one.

Mitigation

I suggest people who have violated their probation voluntarily turn themself in even when they know they won’t be able to post a bond to get out. It doesn’t necessarily mean they won’t go to jail, but it shows they’re taking it seriously,

Also, if a person doesn’t turn themself in knowing there’s a warrant or if they fail to meet with their PO because of fear of being arrested, they’ve committed a new violation termed “absconding” from probation. The fact someone voluntarily turns themself in is something a competent attorney can use to argue to mitigate the violation. There are other actions a probationer may take to mitigate the consequences of the VOP as well.

Also, there are times when the probationer simply isn’t guilty of violating their probation. In that case, it may be best to have a contested judge trial or hearing with the court.

As always, consult an attorney before making any decisions in important matters like these.

NOTE:  The information we provide in this blog is not legal advice and should not be interpreted as such.  This blog in large part is designed to help the public understand the criminal justice system and certain criminal offenses a little better.  It is not a substitute for legal advice and must not be taken as such.