Switch to ADA Accessible Website
Orlando Criminal Lawyer

Can A Florida Judge Clear You Of A Probation Violation Without A Hearing?

No_Court

Probation is not, contrary to what many people think, a “free ride” for a convicted felon. To the contrary, probation requires a defendant to strictly adhere to a number of restrictions and other conditions in their daily life. If a probation officer has reason to believe a probationer has violated any of these rules, the officer will file a “Violation of Probation” affidavit.

This affidavit will lead to a hearing before a judge to determine if the probationer, in fact, committed the alleged violation. This hearing is not subject to the same formalities as a criminal trial. For example, the state does not have to prove your guilt beyond a reasonable doubt, only by a “preponderance of the evidence.” Even if a judge determines there has been a violation, however, that does not necessarily mean the probationer goes to prison. The judge has broad discretion to continue probation or modify the existing terms.

Appeals Court: Probation Hearings Mandatory for Certain Violent Felons

But can a judge simply decide on their own that there was no violation and dismiss the state’s affidavit without first holding a hearing? The Florida Third District Court of Appeals recently addressed this question. In State v. Gutierrez, a man charged in two separate theft cases pleaded “no contest” to all charges and received two years probation.

Before the end of this two-year period, the prosecution filed an affidavit alleging multiple violations of the conditions of the defendant’s probation. The case was scheduled for a hearing. Before the hearing, the prosecution and the defense negotiated a plea agreement to dispose of the alleged probation violations. In exchange for admitting several of the violations, the prosecution would recommend the court continue probation for an additional six months beyond the original two-year period.

But on the day of the hearing the judge–without taking any testimony or conducting any formal proceedings–decided on their own initiative to simply dismiss the state’s affidavit outright. The prosecutors then appealed, arguing the trial court abused its discretionary authority.

The First District agreed. Because the defendant in this case was considered a “violent felony offender of special concern,” Florida law required the trial court to conduct a full probation violation hearing. Absent any agreement from prosecution, the judge could not summarily dismiss the matter.

The First District noted that the trial court was not required to accept the negotiated plea agreement presented by the prosecutors and the defendant. But if the judge rejects that agreement for any reason, then the defendant has the right to change his plea. And the judge must still conduct a hearing and “make written findings whether the defendant poses a danger to the community.”

Contact Florida Criminal Defense Attorney Jose Baez Today

Before you plead guilty to a crime and agree to probation, you need to make sure that you understand all of the consequences of that decision. An experienced Orlando criminal defense attorney can provide you with invaluable guidance and representation. Contact the Baez Law Firm today to schedule a consultation.

Source:

scholar.google.com/scholar_case?case=493186183026072955

  • Facebook
  • Twitter
  • LinkedIn
Miami

Miami Office

1200 Brickell Avenue #1410
Miami, FL 33131
Office: 305-999-5100
Fax: 305-999-5111
Orlando

Orlando Office

23 South Osceola Avenue
Orlando, FL 32801
Office: 407-705-2626
Fax: 407-705-2625

Email Us

Fields Marked * Are required

DISCLAIMER: Completing and submitting this form or otherwise merely contacting The Baez Law Firm or any individual at the firm will not establish an attorney/client relationship. Our firm cannot represent you until we determine that there would be no conflict of interest and that we are otherwise able to accept representation of your case. Please do not send any information or documents until a formal attorney/client relationship has been established through an interview with an attorney and you have been given authorization in the form of an engagement letter with The Baez Law Firm. Any information or documents sent via this form or otherwise prior to your receipt of an engagement letter will not be treated as confidences, secrets, or protected information of any nature. Submitting information regarding your potential case will not bar The Baez Law Firm from representing or continuing to represent a person or entity whose interest are adverse to your in condition with your case.

protected by reCAPTCHA Privacy - Terms
Please review the highlighted fields. They are required.
DISCLAIMER: This website contains information about The Baez Law Firm that includes testimonial statements from persons who are familiar with the firm's services. The testimonials shown are not necessarily representative of every person's experience with us. Testimonials from every client are not provided. As no two situations or persons are identical, the facts and circumstances of your situation may differ from those for which testimonials are shown. This website also includes information about some of the past results that we have obtained for our clients. Not all results are provided, and the results shown are not necessarily representative of all results obtained by us. No two situation are exactly alike; every person's situation is unique and the outcome for each person depends on the individual facts.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
MileMark Media - Practice Growth Solutions

© 2015 - 2022 Baez Law Firm. All rights reserved.
This law firm website and legal marketing are managed by MileMark Media.

Contact Form Tab Contact Form Tab