I have written at length about probation violations in previous posts, but what exactly is probation?
Probation is a sentence that can be imposed by way of a plea agreement between the accused and the State Attorney's Office, or it can be a judicial sentence imposed by the Court. The Court (the judge) may impose probation if the accused pleas openly to the Court (called a Court plea) or if the accused is sentenced upon being found guilty at trial
Probation is a sentence that is typically given in lieu of jail, although jail time (up to 364 days) can be made a condition of probation. From the State Attorney's prospective - and I should know, having worked for the Miami-Dade State Attorney's Office
- that prosecutors offer probation when the accused has little or no criminal history, the State's case is weak, or their are mitigating factors that lessen the culpability of the offense, such as mental health disorders or drug addictions.
The term of probation cannot exceed the maximum penalty
for the crime. For example, if you are placed on probation for battery
(a first-degree misdemeanor), the maximum term of probation on that charge is one year. If you have multiple counts, such as battery and criminal mischief
, the judge can impose a probationary sentence consecutively, that means, you serve one year of probation on the battery count, followed by a consecutive year on the criminal mischief count.
For felonies, the same rules apply. The term of probation cannot exceed the statutory maximum for the charge. If you are on probation for aggravated assault
(which carries a maximum of five years), the maximum term of probation is five years.
Now, probation is always better that jail or prison, but by no means is probation a walk in the park. There are plenty of people serving time in Miami and Broward jails, as well as Florida prisons, for probation violations
. A probation violation occurs when a person on probation fails to perform or complete a condition of probation, fails to pay costs, fees, or restitution
, or gets arrested for a new charge (new law violation). If you violate probation, you can be sentenced up to the maximum penalty that the charge (or charges) carry. If you are given two years probation for the charge of burglary of an unoccupied dwelling
, your maximum exposure on a probation violation is not the term of probation, but the maximum penalty for the charge. Since burglary of an unoccupied dwelling carries fifteen years in Florida, you face fifteen years in prison on a violation.
Probationary terms can vary, depending on the crimes. For misdemeanors and third-degree felonies, terms can range from six months, up to two or three years. For second-degree, first-degree, and life felonies, the terms can be high, such as five, ten, even fifteen years.
As a criminal defense attorney
who handles probation matters in both Miami-Dade County and Broward County, I am aware that when a client is on probation or is offered probation as a plea agreement, there are several detail that must be worked out.
First of all, I am a firm believer in early termination. That is, asking the Court to end the probation early if the client is performing well. For instance, if you are on probation for two years, and after one year you have completed all conditions, remained free of arrests, and stayed current on your costs, I would ask the Court to end the term of probation early. This not only closes the case, it gets the client out from under the exposure of a probation violation. If the client has received a withhold of adjudication on a qualifying offense, I can then seal the record
. Click here
to determine whether you are eligible to have your case sealed.
Probation can be a blessing when the client is facing a lengthy prison term, but it can also be a tough sentence to abide by. Clients should be fully aware of all conditions of the probation, and what is expected of them. People violate for stupid reasons, such as failing to report, testing positive for marijuana use, or failing to pay a $35 drug-testing fee. Ask your criminal defense lawyer to explain to you the conditions of probation. And if you are on probation but have violated, contact a probation violation attorney who practices in the Miami and Broward Courts.