Probation Violations: Technical vs. Substantive

If you plead guilty to a charge and are placed on probation, the judge may order you to comply with many different conditions. When even one condition is not met, you have committed a probation violation and can face the maximum time for which you were on probation. At Hanlon Law, Tampa probation violation lawyer Will Hanlon strongly believes in the rights of the accused and works hard for his clients.

Probation or community supervision in Florida is a privilege that is considered a grace provided by the state instead of a sentence with the goal of rehabilitating the defendant and protecting society. Probation requires someone who has pled guilty or been convicted to maintain specific contacts with a particular probation, parole, or community supervision officer and abide by specific conditions provided by a court order.

There are two different kinds of probation violations — substantive and technical. Technical violations are those that occur when a probationer fails to complete one or more conditions of probation, such as abiding by curfew, meeting with a probation officer, getting a job, not buying firearms, or going to a substance abuse or domestic batterer's program.

In Florida, there is a probation violation whenever a criminal defendant substantially and willfully violates a condition set by the court as part of their probationary sentence.

A probation officer can complete an affidavit of probation violation, and an arrest warrant may be issued. Technical probation violations are treated in a different way from a new criminal charge, which must be proven beyond a reasonable doubt. You will not have a right to a jury trial, and hearsay will be admissible. You might need to testify against yourself. Also, there is a lower standard of proof by which a probation violation may be proven. Specifically, probation violations must be proven by the State by the "greater weight of the evidence," and the evidence must be competent. This is closer to the standard for civil lawsuits, and it simply means that the State will need to show that it is more likely than not that you willfully and substantially violated a probation term.

Substantive violations involve being charged with a new crime. When there is a substantive violation, such as driving drunk while on probation for drug possession, you face the possibility of a trial for the new charge, in addition to facing penalties for failing to abide by probation. However, the new criminal charge must be proven beyond a reasonable doubt.

If the court finds you guilty of a technical probation violation, it can modify the probation, reinstate your probation, or revoke your probation and incarcerate you. When your probation is revoked for a technical violation, you can be sentenced to the maximum penalty to which you were initially sentenced. For example, if you got probation because you had no prior record, but you could have been sent to jail for a year, the judge can choose to send you to jail for a year if they find a probation violation. Sometimes the conditions that a court sets are hard to follow. For example, the court may set an unreasonable time limit to complete a community service requirement. In another example, getting arrested for a different charge may also be a probation violation, even if you were not guilty but simply in the wrong place at the wrong time. However, case law varies depending on the probation term at issue. Mere proximity to illegal drugs, for example, is not enough to establish a probation violation. There must be more evidence of having committed a new crime. Similarly, failing to answer the door during a home visit by a probation officer, without more, would not be enough to count as a probation violation.

If you are accused of a probation violation, you should retain a knowledgeable criminal defense attorney right away to evaluate the facts and circumstances that underlie the supposed probation violation. Many people try hard to meet all of the terms and conditions of their probationary sentence, yet they find themselves in a bad situation, unable to meet those terms. Our founder, Tampa attorney Will Hanlon, has provided a strong, aggressive defense to people accused of crimes since 1994. He strives to provide responsive and personalized representation not only to people charged with new crimes like aggravated battery or a drug crime but also to people who are charged with a probation violation. We understand how important staying out of prison is to you. Call Hanlon Law at 813-228-7095 or use our online form to set up an appointment with an attorney.