As a result of a plea or a guilty verdict after a trial, you have been placed on probation or community control in lieu of jail or prison. The Court of your conditions of probation also advised you.
Now, you have been accused of violating at least one of these conditions, and your probation officer has filed an affidavit of violation. He also requested that the judge sign a warrant for your arrest for said violation. Or, you have been arrested for allegedly committing a new crime, and the arresting officer who became aware of your probationary status has also charged you with an “on site” violation of probation.
Violation of probation and community control cases (V.O.P. or V.O.C.C.) are more challenging than your original case, or your new criminal case. A plea in your new case is all the State needs to prove your violation of probation. Therefore, if your are violated because it is alleged that you committed a new crime, your V.O.P. or V.O.C.C. MUST be handled before or at the same time your new case gets resolved.
The defense options of your V.O.P. or V.O.C.C. are more limited. Even so, the resolution of your violation of probation requires the same or better diligent and competent defense as your new case, as the exposure to incarceration is higher, and so are the chances for the State to satisfactorily prove their case.
If you know that you will be violated, make sure to retain an attorney BEFORE you are arrested or surrender. Doing so will likely result in a shorter incarceration time before the resolution of your case.
Don’t take chances with your life, call today.
Contact Morgan & Barbary’s experienced criminal defense attorney, Darrell Sedgwick, today for your FREE telephone consultation and discuss your case: 321-951-3400. Review our Arrest Tips and our answers to other Frequently Asked Questions.
What are there are types of situations that trigger a violation of probation?
- An arrest for a new criminal offense, even if the new offense is not actually charged by the State. The arrest itself may be the basis supporting a violation of probation.
- A failure to appear in court or at any of your court or probation ordered alternative program, A.A. meetings, counseling, sex offender therapy classes, or missing an unexcused appointment with your probation officer.
- A failure to satisfy your financial requirements or to enroll or satisfactorily complete a Court-ordered rehabilitation program.
What are your rights at the hearing for your alleged violation of probation?
Probationers are entitled to a court hearing. However, the probationer’s rights are very different than one’s rights at his criminal jury trial.
- The probationers is not entitled to a jury, a judge will adjudicate the matter.
- The probationer may be held longer in custody before any hearing takes place, as the right to a bond is different for probationers.
- The burden of proof on the State, is now preponderance of the evidence, rather than beyond and to the exclusion of all reasonable doubts; a much lower standard. It makes the violation easier to prove against you.
- Hearsay is admissible.
- The probationer does not have the right to assert his 5th amendment to remain silent.
In the case of felony probation, the client faces the possible revocation of the original probation and a sentence to a number of years in the State Prison.
What can a good criminal defense lawyer do for you?
The answer to this question is very “facts specific;” however, a good defense lawyer can sometimes shorten the time it will take to handle your case, and thereby reduce your pre-hearing incarceration. There are certain ways to handle your violation which may seriously benefit you and better the outcome of your case, avoid prison time, result in the dismissal of your violation and sometimes even maintain your withhold of adjudication, which will allow you to later seal your record.
Why should the fee for a violation of probation be lower than for the handling of your original crime?
Certain defense attorneys will ask for a large retainer fee because of your exposure to jail or prison, which is higher in a V.O.P. case, and freedom sells well. However, for the following reasons, our fee for a V.O.P. case is lower than the fee charged for the handling of the underlying criminal charge:
- The work, which can be achieved in a V.O.P. case, is more limited than the work required to resolve the original case.
- The discovery is smaller.
- There will be fewer court appearances.
- The body of laws applying to VOP is more concise.
- The defenses available are often limited.
- You are not entitled to a jury trial, and a bench trial is less involved.
In short, there is less legal work involved in the defense of a V.O.P. or V.O.C.C. than in the resolution of a new criminal charge.
In conclusion, even though the number of options you have is more limited when dealing with a V.O.P. or a V.O.C.C., do not overlook the fact that the punishment will usually be worse than your original sentence. Keep in mind that you have only one bite at the apple. You will likely get a better result if an attorney who regularly deals with these specific issues, as we do at Morgan and Barbary, P.A, represents you.