subject: The Procedure For A Floirda Violation Of Probation Hearing [print this page] A violation of probation hearing is handled much differently than a substantive criminal charge. Both the procedure and standard of proof are far different in violation of probation hearings. In order to grasp the difference between criminal trials and violation of probation hearings, it is necessary to know what exactly probation is.
A defendant does not have a right to be placed on probation. Rather, probation has been described as being a "state of grace" from the court as an alternative to incarceration. Probation allows someone, who would otherwise be incarcerated, the chance to avoid incarceration contingent on complying with rules set forth by the court. The rules usually are fairly simple. Typical rules usually include, not committing any new criminal offense, show up to your appointments with your probation officer, paying court costs, paying restitution and passing random drug and/or alcohol tests.
If an individual isn't in compliance with the terms of probation, the probation officer can file a violation report. The probation officer may arrest the individual on the spot, obtain an arrest warrant or just provide the defendant with a copy of the violation report and a court date. The officer's decision on how to proceed is based on office policy as to the type of violation and also the officer's discretion.
The alleged violation of probation will go back in front of the original sentencing judge absent extraordinary circumstances. You will need to understand the procedural differences between probation violations and substantive criminal offenses. Even though there is no right to be on probation, the State must still afford the accused due process to be able to revoke or modify the terms of the defendants probation. Due process for purposes of a violation of probation hearing consists of notice of the allegations against the accused and also a meaningful opportunity to be heard with regard to the allegations.
Other salient differences and the reasoning behind the differences are as follows. The United States Constitution provides for a Defendant's right to a speedy trial. However, the right to a speedy trial only applies to a substantive criminal offense. Likewise, the United States Constitution provides for a Defendant's right to a trial by jury. However, the right to a trial by jury only applies to a substantive criminal offense. Although there isn't a right to a speedy violation of probation hearing, the hearings do tend to be handled in an expedited manner. Due to the expeditious manner that the hearings are held, discovery rights are limited.
Probably the most important difference between substantive criminal charges and violation of probation hearings is the standard of proof required revoke probation versus convict for a criminal charge. The United States Constitution provides that an individual can only be found guilty if the State can prove the individuals guilt beyond a reasonable doubt. A result of the fact that a violation of probation hearing is not a criminal offense, the standard of proof required to revoke probation is significantly less than what is necessary to obtain a criminal conviction. Many ways are used to express the standard of proof required to find an individual responsible for the probation violation. One is "enough evidence to satisfy the conscious of the court." Another, more simple, way that it is expressed is "by the preponderance of the evidence." Quite simply, if the Judge believes the defendant committed the violation of probation, the defendant will be found responsible for the violation.
Under Florida Law, once an individual is found responsible for a violation of probation, all of the sentencing options are opened back up. The Judge has the authority to revoke probation and order the defendant be incarcerated, modify the terms of probation or terminate the probation. The decision is in the Judge's discretion and the Judge will take into account the defendant's prior criminal record along with the character of the violation.
