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Extra Criminal Law Blog


What You Should Know About Violation of Probation or Community Control


Under Florida law (Florida statutes 948.06), whenever within the period of probation or community control there are reasonable grounds to believe that a probationer has violated his or her probation or community control in a material respect, any law enforcement officer who is aware of the probation or community control status of the probationer may arrest or request any county or municipal law enforcement officer to arrest such probationer without warrant wherever found and return him or her to the court granting such probation or community control.

Probationers have less protection than if charged with a new crime e.g., no right to a jury trial, no status of limitation for violation of probation, etc.


OLOWU LAW, PA - Blog Probation or Community Control

Types of Probation

In Florida, there are different kinds of probations and the probation given depends on the crime of which you have been convicted and here are some of the most common types of probation:

Regular Probation: this kind of probation requires you to have regular contact and/or meet with your probation or parole officer to make sure you are meeting the requirements of your probation along with the special condition of your probation.

Administrative Probation: this is similar to regular probation, except you are not required to regularly report to or meet with your probation or parole officer.

Drug Offender Probation: this is mostly recommended for people convicted of drug charges and one key requirement with this kind of probation is regular drug testing.

Community Control Probation: this is stricter than the regular and even drug offender probation because it requires you to be in supervised custody e.g., treatment facility etc.

Sex Offender Probation: this is mostly recommended for people convicted of sex crimes and they are required to follow certain treatment program.


There Are Two Ways to Violate Probation

In Florida, probation violations are grouped into two separate categories. These categories include technical and substantial violation.

Technical violation is any violation of either your general or special conditions of probation such as testing positive for drug or alcohol, failure to report to your probation officer, failure to change your address, failure to take special class or treatment or evaluation, failure to submit to drug test, violating your curfew, failure to pay financial obligation or leave the jurisdiction without permission etc.

Substantial violations of probation occur when you commit a new criminal offense while on probation.


Common Facts About Violation Of Probation Proceedings

Once a probationer is deemed to have violated the terms of his or her probation. Their probation officer will submit an affidavit of violation to the court. The affidavit is a sworn statement outlining why the officer has reasonable grounds to believe the probationer committed the violation. The judge will review the allegations, determine whether reasonable grounds exist, and issue a capias or warrant for the probationer’s arrest.

The probationer will be placed on a “no bond” status, especially if his or her violation was substantial which, in the absence of an intervening motion, will require him or her to remain in jail until bond can be requested and posted.

The probationer will be arraigned on the violation charge and eventually be set for an evidentiary hearing where the prosecution bears the burden of proving a willful and substantial violation of supervision by competent evidence. Depending on outcome of the hearings the judge will either revoke, modify or reinstate probation.


Penalty/Punishment for Violation of Probation

Under Florida law (Florida statutes 948.06(2)(a), if a probationer admits to violating probation or a judge finds a probationer in violation of his probation after conducting a hearing, a judge is required to take one of three actions:

Revoke Probation: upon the revocation of probation or community control the Court may impose any sentence which it might have originally imposed on the offender at sentencing. Thus, the defendant may be sentenced up to but not in excess of the statutory maximum penalty for the original offense at issue.

Modify Probation: The Court can modify the terms of supervision by adding new conditions or extend the probationary period. The court can also impose jail time as a special condition of probation.

Reinstate Probation: This is where the court allows you to continue to stay on probation without changing the terms of probation. The judge decides not to revoke or modify the terms of your probation. This is usually the preferred outcome after a violation of probation or community control.


Common Defenses to Violation of Probation or Community Control

Unaware of special condition: this applies in situation where the probationer violated a special condition of their probation but is not aware of the special condition. This defense is not applicable where the violation is substantial such as committing a new crime.

Medical emergency: as the name implies, attending to a personal medical emergency or even medical emergency involving another is a defense to violation of probation or community control.

Curfew compliance: where curfew is a special condition of probation and there is a violation due to medical emergency, work or school etc. there is a viable defense especially if the reason for the curfew violation is documented properly or verifiable.

Inability to pay: This issue usually arises in situations where payment of restitution is a condition of probation. If the probation can show that they lack the ability to pay the restitution, the Court may not violate their probation but beware you cannot claim that you lack the ability to pay and then turn around and fluent money on social media.

Insufficient time remaining to compete probation: This arises in situation where the time the probationer has left on probation is insufficient to complete the special conditions of their probation. Situations like this can result is modification of probation to ensure that the probationers rights are not violated.



DOS AND DONTS AFTER AN ARREST

Remember- Don’t Go It Alone- in an effort to aid in your defense when you are arrested here are a few Dos and Don’ts you should keep in mind.


DOS
  1. Hire a knowledgeable lawyer and listen carefully to lawyer’s advice.

  2. Bond out of jail as soon as possible if you can afford to.

  3. Be honest with your lawyer. It is difficult for your lawyer to help, if you are lying to him/her (you are on the same team).

  4. Show up to court on time, well-groomed, and properly dressed. (Tip: Dress as if you are going for a job interview).

DON’TS
  1. Don’t talk to the police without a lawyer present.

  2. If you are still in custody don’t’ discuss facts of your case using the jail telephone. (Tip: jail phone is recorded and can be used against you in court).

  3. Don’t discuss your case with anyone except your lawyer- anyone can be snitch.

  4. Don’t talk to witnesses or the alleged victims in your case- it’s your lawyer’s jobs to depose and discuss the case with them.

Difference Between Misdemeanor And A Felony In Felony

In Florida crimes are classified as either Traffic, Misdemeanor or Felony offense. This blog will focus on the difference between a misdemeanor and felony offense. Potential criminal punishment is based on the seriousness of the crime and/or the person’s prior criminal history.



Misdemeanor

Under Florida law (Florida statutes 775.082(3)(4), misdemeanor are crimes that are punishable by one year or less in jail. Unless charged with other felony offenses, misdemeanors are handled by a County Court Judge and are considered less serious crimes compared to felony offenses. Misdemeanors are categorized as either first degree or second-degree misdemeanors.

A First-Degree Misdemeanor is a crime punishable by no more than one year in jail, or up to one-year probation, and up to $1,000 fine.

A Second-Degree Misdemeanor is a crime punishable by no more than sixty days in jail, or up to six months of probation, and up to $500 fine.

Felony

Under Florida law (Florida statutes 775.082), Felonies are handled by Circuit Court Judges and are punishable by the possibility of more than one-year in prison. Felony offenses are sentenced pursuant to Florida’s Criminal Punishment Code (“CPC”). Under the CPC, commonly referred to as a scoresheet, each felony has a specific number of points based on upon a statutory severity ranking, which are determined by the Florida legislature regardless of statutory degree. The higher the level a felony is designated, the more points it carries on your CPC/scoresheet. If a defendant score more than 44 points, he or she is subject to a minimum term of imprisonment. If a defendant score less than 44 points, a judge has the discretion to sentence him or her to prison or probation depending on the nature of the offense. There are different degrees of felony and the punishment for each is different:

A Capital Felony is punishable by death or life in prison without the possibility of parole.

A Life Felony is punishable by life in prison without the possibility of parole, or probation for the remainder of your life, and a $15,000 fine.

A First-Degree Felony is punishable by up to 30 years in prison, or 30 years probation, and up to $10,000 fine.

A Second-Degree Felony is punishable by up to 15 years in prison or 15 years probation, and up to $10,000 fine.

A Third-Degree Felony is punishable by up to 5 years in prison or 5years probation, and up to $5,000 fine.

The Most Common Crimes In Florida

Florida is notorious for its peculiarity but it still one of the most amazing places to live in the US, thanks to an abundance of sunshine, gorgeous greenery, access to beautiful beaches and waterways. Like every other State, though, Florida has its fair share of crime. According to the Florida Department of Law Enforcement (FDLE) here are the most common crimes in Florida:

  1. Larceny-Theft: According to FDLE there was a total of 291,923 larceny crimes reported in Florida in 2020. The larceny crimes include crimes such as pocket picking, purse snatching, shoplifting, etc.

  2. Drug Offenses: According to FDLE, there was a total of 134,396 arrests for drugs/narcotics offenses reported in Florida. The Florida Uniform Crime Reports program defines drugs/narcotics offenses as the unlawful cultivation, manufacture, distribution, sale, purchase, possession, transportation, or importation of any controlled drug or narcotic. The punishment for drug offense is based on the type of drug, the quantity of drug, prior criminal history, and location of the arrest.

  3. Domestic violence: According to FDLE there was a total of 106,736 domestic crimes reported in 2020. Domestic crimes are crimes where the victim has a familiar or romantic relationship with the offender.

  4. Property Crimes: According to FDLE there was a total of 66,264 property crimes in Florida.

  5. Aggravated assault: According to FDLE there was a total of 60,567 aggravated assault reported in Florida in 2020.

  6. Motor vehicle theft: According to FDLE there was a total of 38,013auto theft reported in 2020.

  7. DUI- According to the FBI uniform crime report there was a total of 29,073 DUI arrest in Florida in 2020.

The Most Common Drug Arrests In The US

There were a total of 1,155,610 drug arrests in the US in 2020, according to drugpolicyfacts.org, of the total arrests, 1,001,913 was for possession of drugs, and 150, 229 was for sales of drugs.

  1. Marijuana: there was a total of 350,149 arrest reported in the US. Every 90 seconds someone is arrested for possession of marijuana.

  2. Heroin or Cocaine: there was a total of 275,035 arrest for possession of cocaine in the US.

  3. Synthetic drugs: there was a total of 57,780 arrest for synthetic drugs such as fentanyl, oxycodone etc.

  4. There was a total of 473,800 arrest for other narcotic such as methamphetamine, ecstasy, etc.

The 6 Phase/Stages of Criminal Case

Although every criminal case is different, most criminal case progress through the following phase/stages. At Olowu Law, P.A. We understand firsthand how confusing it can be for members of the community to navigate the legal system especially immigrants and first-time offenders. So, in an effort to help and make the process more understandable, here are the 6 phases/stages every criminal case will go through- remember you Don’t Go It Alone.


Phase One: Arrest or Notice To Appear

In Florida every criminal case starts either as an Arrest or Notice to Appear. An Arrest (statutes 901.15) authorizes police officers to make an arrest if they witness a person committing a crime or if they have probable cause to believe that a crime has been committed. Additionally, police can arrest you if you have an active arrest warrant. A Notice to Appear (Florida Rules of Criminal Procedure 3.125), means a written order issued by a police officer in lieu of physical arrest requiring a person accused of violating the law to appear at a designated court or governmental office at a specified date and time. A notice to appear is applicable in cases where a police officer completed an incident report but did not make an arrest, mostly applicable in misdemeanor or municipal violation. If you don’t show up for the notice to appear a warrant can, be issued for your arrest.


Phase Two: First Appearance

According to Florida Criminal Rules of Civil Procedure 3.130, every person who is arrested and has not bonded out or released must be brough before a judge within 24 of the arrest.

At first appearance, the judge will immediately inform the defendant of his charges, including any alleged violation of probation or community control and provide him with a copy of the complaint against him. The judge shall also adequately advise the defendant about his right to remain silent, and right to counsel.


Phase Three: Arraignment

According to Florida Rules of Criminal Procedure 3.160, at the arraignment, the judge informs you of the charges against you and advises you of your right to an attorney. This is also your first chance to enter a formal plea, whether it is not guilty or guilty. Defendants who bonded out of jail or who were served a notice to appear in lieu of arrest, appear in court for the first time at their arraignment.


Phase Four: Discovery

This phase of the process is governed by Florida Rules of Criminal Procedure 3.220. This is one of the most important aspects of the criminal process, if you have an attorney, he or she will conduct discovery and attempt to locate evidence that absolves you of the charges or help with your defenses. During this stage, your attorney will review the evidence for strengths, weaknesses, legal issues, and use any leverage he or she find to negotiate with the prosecutor for a favorable plea agreement or prepare dispositive motion or prepare for trial. This discovery stage also involving the attorney taking deposition of witnesses depending on the case.


Phase Five: Plea Discussions and Agreements

This phase of the process is governed by Florida Rules of Criminal Procedure 3.171. This process can begin as early as the first appearance and sometimes continue even after a trial has begun. It is important to have an experienced criminal defense attorney review your case before you take a plea, no matter how favorable the plea offer may seem at first. If a plea agreement is unable to be reached with the prosecutor, a defendant has two options left: either open plea to the judge (asking the judge to give whatever punishment he or she deems fair) or to take the case to trial. An experienced criminal defense attorney can help you understand when it is best to accept a plea offer, plead open to the court, or take a case to trial. Nevertheless, it is you alone – who will ultimately make the decision whether to take a plea, plea open to the judge, or take the case to trial.


Phase Six- Trial and Sentencing

This phase of the process is governed by Florida Rules of Criminal Procedure 3.251 and 3.700. You can elect to have a jury trial depending on the charge or you can have a bench trial where the judge is the finder of facts. At trial, the State/Prosecutor bear the initial burden of proving that you committed the crime alleged beyond a reasonable doubt. Both sides have the opportunity to give their version of events from opening statements through closing arguments. Regardless of whether the jury return a verdict of not guilty or guilty, the jury’s verdict must be unanimous in other for a person to be convicted.

If the jury or judge finds you not guilty, you are released without any fines, probation, or jail time. However, If the jury finds you guilty, the case moves forward to sentencing, which is where the judge pronounce your punishment. Sentencing can sometimes take a few weeks/months after a trial or take place immediately after a verdict.


The Most Common Options For Resolving Criminal Cases

There are four common options available in resolving a criminal case and at Olowu Law, P.A., we make sure our clients are made aware of these options. It is important to note, that the agreement of the victim, Prosecutor, and Judge is required for most of the option discussed below.

  1. Diversion Program: this is one of the most common options to resolving a criminal case especial for first time non-violent offenders. Diversion programs are like probation with the benefit that if you successfully complete the diversion program your case is dismissed. There are different kinds of diversion programs run by different State Attorney’s Offices and the requirement for entry to such program is determined by the State Attorney’s Office in the jurisdiction where you were arrested.

  2. Plea Negotiation: this is where you receive an offer from the Prosecutor/State to resolve the case without trial. The principle being that if the defendant is offered a lesser punishment, he or she will take the offer instead of risking a harsher punishment if they should loss at trial. According to research conducted by Bureau of Justice Assistance U.S. Department of Justice, 90 to 95 percent of cases are resolved through plea bargain.

    1. Open Plea: There is another option in plea negotiation, this is where you bypass the prosecutor and ask the judge for a plea offer usually because you believe the judge will impose a more reasonable sentence that what the prosecutor offered.

  3. Litigation: if the case is not resolved through diversion program or plea negation, the next stage will be to litigate the case, which will include filing dispositive motion, or motion to suppress or motion to dismiss. The basis for the motion to suppress could be that some of the evidence or even the initial stop or search or something done by the police, or the prosecutor is not supported by the law and should be suppressed from being used in trial.

  4. Trial: when all the above options have been exhausted and the case does not resolve, your case is presented to the jury or judge to determine your guilt or innocence.

  5. Non-Jury Trial: the judge is the fact finder in the case during a non-jury trial. The judge and only the judge listens to all the evidence and determines whether you are guilty or innocent. A non-jury trial is mostly used in misdemeanor cases when parties do not want to spend the time picking a jury and all parties involved especially the defendant agree to it.

  6. Jury Trial: this is trial by jurors where jurors are the fact finders in the case. The jurors listen to all the evidence and determines whether you are guilty or innocent. While the judge determines the law that applies in the case and serve as a referee between the parties.


The 6 Things to Know Before A DUI Arrest

Don’t drink and drive because the cost of a DUI arrest is likely far more than you think. If you ignored the advice above and have been pulled over by an officer for DUI, here a few things to keep in mind- Hopefully you don’t ignore this advice:

  1. Stay in your car and only provide the documents requested by the officer: stay calm do not go looking for anything until you are asked by the police especially if you are Black or a Minority. Also bear in mind that the officer will document all your behaviors and mannerism from the first contact with you e.g., slurred speech, fumble your license, etc.

  2. Invoke your right to an attorney: The police will try to engage you in conversation by asking simple questions like have you had anything to drink today, where are you coming from etc. Your best response should be “I cannot answer your questions without my attorney present.” The statement effectively stops the officer’s question. You don’t even have to call your attorney right at the scene.

  3. Don’t resist arrest: don’t be rude, or argumentative, or subject yourself to more charges by resisting the officer. Arguing with the officer will only make your case worst. The truth is the more polite and respectful you appear, the better your case will be before a jury.

  4. Don’t consent to vehicle search: you must politely decline any request from the police to search your car. The police request is usually very polite e.g., “you don’t mind if I look in your trunk, do you? - You must politely decline. Make your response verbal and clear especially if he is wearing a body camera.

  5. Should I take the breath test: the truth is that no lawyer can really answer this question for you because if you have not been drinking then it is okay to take it but if you have been drinking then it is not prudent to take it. Driving is a privilege, and that privilege creates an agreement between you and the State to take a breath test if you were ever requested to after your arrest? It is called the Implied Consent and even if you don’t remember agreeing to it, you did. Under Florida law (Florida statutes 316.1939(c), refusing to give a breath sample is a first-degree misdemeanor which carries one year driver’s license suspension for first refusal.

  6. Bonus point- Contact your lawyer: after you have been arrested for DUI- maybe you blew over .08 or refused the breath test. The next step is to contact Olowu Law, P.A., to start gathering evidence and prepare to fight on your behalf- remember- Don’t Go It Alone.


What You Should Know Before Your Free Criminal Consultation

At Olowu Law, P.A., we offer a 100% FREE consultation on all Criminal matters. Before contacting us, go through this checklist to get ready for your free consultation with our team- you come to the free consultation unprepared it will not be a productive meeting.

  1. Free Criminal Consultation -You Should Bring as Much Information as Possible to Your Consultation:

    1. Picture and video of the alleged criminal act.

    2. Any police report documenting the charges against you.

    3. Names and contact information of any potential eyewitnesses or character witness.

  2. What To Expect at Your 100% Free Consultation

    1. Take comfort in knowing that everything you tell us is confidential and we will honor your privacy.

    2. We will discuss all the details of your criminal case during our meeting and discuss potential strategy.

    3. You will have the opportunity to ask questions and get clarification on any issue you have in mind.

  3. Things To Avoid Before Your 100% Free Consultation?

    1. Before you meet with our team, DO NOT accept any PLEA OFFER from the State/Prosecutor.

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