How Many Times Can You Violate Probation Before Going Back to Jail in Florida?

If you are released on probation in Florida, you will be expected to adhere to a set of conditions during the entire probation term.

Failure to follow one or more of these conditions is known as a probation violation and could result in jail time.

Accidental breaches are unlikely to result in jail but willful and/or repeated probation violations are treated more harshly by the Florida justice system and could lead to significant time behind bars.

In Florida, when an individual is accused of a crime and pleads guilty, nolo contendere, admits the facts alleged to constitute a crime or is convicted, the judge will impose a sentence as punishment.

With some crimes, there are mandatory minimum jail sentences that must be imposed. Otherwise, the judge may decide on a conditional release in the form of a period of probation rather than (or in addition to) a jail sentence if it is deemed appropriate.

Probation is an alternative sentencing measure. It is not to be confused with parole, which is when a convicted person is released from jail on a promise of good behavior and assimilates back into the community with certain conditions attached to their release.

A probation order will include the length of the probation period and a set of conditions for the individual to follow.

The most important condition is usually to keep the peace and not commit another offense or be re-arrested. You must also report regularly to a probation officer (PO) and adhere to some or all of the following additional conditions:

• Notify the PO of any address change
• Permit the PO to visit home, work or other locations
• Maintain employment or attend an educational program
• Remain in the designated jurisdiction unless the PO provides authorization to leave
• Attend assigned counseling for alcohol, drug, domestic violence, mental health, etc.
• Agree to provide blood or urine samples for alcohol or drug testing
• Pay restitution to victims
• Associate with known felons or other criminals
• Do not take drugs without a doctor’s prescription (and you must inform the PO)
• Perform any assigned community service hours

At the conclusion of the designated probation period, providing the individual has successfully complied with the conditions, these obligations are lifted.

In Florida, there are two basic types of probation violations:

1.     Substantive probation violations:

This is the most serious type of violation and involves a new offense being committed and a separate charge being filed. It could be a minor misdemeanor or a more serious felony crime.

If the probation officer discovers evidence that leads to a “reasonable suspicion” of a new crime having been committed, an Affidavit of Violation must be filed with the court describing the violation. The probationer can then be arrested even without a warrant being issued.

With substantive violation hearings, there are no juries and the burden of proof for the prosecution is lower than in a standard criminal case. Instead of “beyond reasonable doubt”, the prosecutor must prove by a “preponderance of the evidence” that the violation occurred, i.e., that it is more likely than not that the accused substantively violated probation.

During proceedings, the accused does not have the right to be released and may be held in custody. Nor does the alleged violator have the right to be notified of the allegations, be represented by an attorney, confront and cross-examine witnesses or testify in their defense.

2.     Technical probation violations:

Technical probation violations are more common and occur when the probationer fails to comply with one or more of the conditions of their probation, e.g., missing a meeting with the PO, testing positive for drugs or failing to attend work.

If the probation officer discovers the violation, a little more latitude may be extended to the probationer. An arrest warrant may not be issued and instead, a notice to appear in court may be sufficient. A judge will then decide whether to send the probationer to jail, impose some other punishment or issue a warning.

Sometimes, the assigned probation officer can decide whether or not the probationer has “violated” the conditions of probation and whether it should be written up. Minor infractions, such as missing an appointment or failing to attend a mandatory AA class may not be written up.

However, for more serious or repeated violations, the court may need to be informed or the PO may simply decide that enough is enough.

While the judge may extend some leniency to a first-time probation violator, this is far less likely for further technical violations. In fact, the judge has wide authorization to impose any reasonable sanction on a repeat offender.

The same options are available to a judge for second-time violators as for first-time violators but the likelihood that the judge will impose sanctions is increased. Possible measures include:

• Extending the probationary period: probation may be extended by a certain period or “reset”, effectively doubling the period, e.g., from one year to two years.
• Adding conditions to probation: these usually relate to the probation violation in question, for instance, for offenders who have repeatedly failed drug tests, the judge may mandate inpatient rehab as a condition of release.
• Canceling probation and ordering jail time: the judge may simply cancel probation and order jail time for the remaining sentence if extending the period of probation or extra conditions are unlikely to be effective measures.

Ideally. you should never violate the terms of your probation. Then there will be no reason for the justice system in Florida to clamp down on you.

If you do violate probation, how a judge will treat you depends greatly on the severity of the infraction. If you committed a substantive probation violation, you may be considered “high risk”. One violation may be enough for you to go to jail.

However, for low-risk technical violations, some probationers commit as many as three violations before facing jail time. Bear in mind, however, that anyone other than very low-risk probationers is on a very short leash and can face going to jail even for one violation.

If you require legal representation or have questions regarding probation, please do not hesitate to contact us online or by phone at (305) 403-7323.