Probation lets you stay in the community instead of serving time, but it comes with conditions. If your probation officer believes you broke one, the case can come back before the judge who sentenced you. A violation of probation (often called a "VOP") works differently from a new criminal case. Here is what generally happens, and what to do.
Step 1: The affidavit and the warrant
A VOP usually starts when your probation officer files a sworn statement, called an affidavit of violation, with the court. The judge can then issue a warrant for your arrest. In some cases the judge issues a notice to appear instead, and an officer can also arrest without a warrant if there are reasonable grounds to believe you violated probation in a material way.
Violations generally fall into two groups. A technical violation is breaking a condition, such as missing a meeting with your probation officer, failing a drug test, missing a payment or not finishing classes. A new law violation means being arrested for or charged with a new crime. For some first technical violations, Florida has an alternative sanctioning program that can handle the problem without a full VOP case.
Once the affidavit is filed, your probation is generally put on hold (the law calls it "tolled") until the judge decides the violation.
Step 2: Bond, or no bond
Many people are surprised to learn that a VOP warrant is often issued with no bond. The judge has discretion whether to release you before the hearing and on what terms. For some people, such as those the law treats as violent felony offenders of special concern, the law generally requires staying in custody until the hearing, unless the violation is only a failure to pay. A lawyer can ask the court to set a bond or other release conditions where the law allows it.
Step 3: The VOP hearing
If you don't admit the violation, the court holds a hearing. There is no jury; the judge decides. You have the right to be heard and the right to a lawyer. The State has to prove the violation, but the standard is lower than in a criminal trial:
- Preponderance of the evidence. The State generally has to show it is more likely than not that you violated a condition, not prove it beyond a reasonable doubt.
- Willful and substantial. Florida courts generally require the violation to be willful and substantial. For example, missing a payment you truly couldn't afford is treated differently from refusing to pay.
- Hearsay limits. Hearsay can be used at a VOP hearing, but courts generally won't find a violation based on hearsay alone.
Step 4: Possible outcomes
If the judge finds no violation, the affidavit is dismissed and probation continues. If the judge finds a violation, the options generally include:
- Continuing probation as it was.
- Modifying probation, for example by adding conditions, extending the term or adding a short jail stay as a condition.
- Revoking probation and sentencing you again. On revocation, the judge can generally impose any sentence that could have been imposed for the original charge, up to the legal maximum.
For some low-risk first technical violations, the law limits the judge to modifying or continuing probation. Your record, the type of violation and the original charge all affect what is possible.
What to do if you think you may be violated
- Talk to a lawyer before you talk about it. What you tell your probation officer can be used at the hearing.
- Keep proof. Payment receipts, class certificates, work schedules, medical records and texts with your probation officer can all matter.
- Keep doing what probation requires. Report, test and pay as ordered while the case is pending, unless the court says otherwise.
- Don't ignore a warrant. A lawyer can help you plan how to address it.
- Go to every court date. Missing one can make things worse.
This article is general information about probation violations under Florida law, not legal advice. The rules depend on the facts and can change. Every case is different, and reading this doesn't create an attorney-client relationship.