Probation Violation (VOP) Defense in Miami

It can start with a missed appointment, a late payment, a positive drug test, or a new arrest. Sometimes it starts with a warrant you didn't know about. Whatever started it, if you deny the violation, you have a right to be fully heard before the judge decides, in person or through a lawyer.

Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012. Our office answers 24 hours a day. Call (305) 209-0384.

How a Probation Violation Case Starts

Florida's probation-violation statute gives the State several ways to bring you back to court:

• Arrest without a warrant. When there are reasonable grounds to believe you violated probation or community control in a material respect, a law enforcement officer who knows you are on supervision, or a probation officer, can arrest you, or have you arrested, without a warrant and bring you back to the court that placed you on probation.
• A warrant based on an affidavit. The judge can issue a warrant after someone with knowledge of the facts swears to them in an affidavit. In practice, this is usually the probation officer's violation affidavit.
• A notice to appear instead of a warrant. For some people, the judge can issue a notice to appear instead of a warrant. That option is not available if you have ever been convicted of, or are now accused of, one of the serious "qualifying offenses" listed in the statute.
• A notification letter for some technical violations. The chief judge of a circuit can direct that certain technical violations be reported to the court by letter instead of an affidavit and warrant.

Your probation clock stops. Once a violation affidavit is filed and a warrant, a warrantless arrest, or a notice to appear follows, your probation period is tolled (paused) until the judge rules on the violation. The court keeps jurisdiction over any violation alleged to happen during the tolled period. If the affidavit is later dismissed, the statute gives you credit for the tolled time against your probation.

Technical Violations vs. New-Law Violations

Florida law separates two kinds of violations:

• Technical violations. The statute defines a technical violation as an alleged violation that is not a new felony, misdemeanor, or criminal traffic offense. Missing an appointment with your probation officer, missing a class, a positive drug test, or falling behind on payments are common examples.
• New-law (substantive) violations. One of the standard conditions of probation is to live without violating any law. Under Florida law, a conviction is not necessary for a new law violation to count as a violation of probation. That means a new arrest can lead to a VOP case even while the new charge is still pending, and even if the new charge is later dropped. The condition is to live without violating any law, so the question at the VOP hearing is whether you broke the law, not whether you were arrested.

The Alternative Sanctioning Program

For some technical violations, Florida requires each judicial circuit to have an alternative sanctioning program. Instead of filing a violation affidavit, the probation officer can offer a sanction, which the judge must approve before it is imposed.

• Low-risk violations for a probationer include a positive drug or alcohol test, failing to report to the probation office, failing to report a change of address or job, missing a required class or treatment session, failing to submit to a drug test, a curfew violation, falling behind on a monthly requirement such as restitution, court costs, or community service hours, leaving the county without permission, and associating with a person engaged in criminal activity.
• Moderate-risk violations include the same violations when committed by someone on community control, failing to remain at an approved residence while on community control, and a third low-risk violation by a probationer in the same term.
• Possible sanctions depend on the level. For a first or second low-risk violation, the options include up to 5 days in county jail, up to 50 extra community service hours, treatment, drug testing, a curfew or house arrest for up to 30 days, and others. For a first moderate-risk violation, with a supervisor's approval, the options include up to 21 days in county jail and up to 90 days of curfew, house arrest, electronic monitoring, or residential treatment.
• Who is not eligible: among others, anyone whose violation is a new felony, misdemeanor, or criminal traffic offense; absconding; violating a stay-away or no-contact order; someone with a prior moderate-risk violation, or three prior low-risk violations, in the same term; and someone whose supervision ends in less than 90 days.

Read this before you sign anything. The program is voluntary. To take part, you must admit the technical violation, agree to the recommended sanction, and give up important rights, including the right to a lawyer, the right to make the State prove the violation before a neutral and detached hearing body, the right to call witnesses and present evidence, and the right to confront and cross-examine witnesses. You can decline or drop out at any time before the judge imposes the sanction, but then the probation officer can file a violation report, affidavit, and warrant. The same is true if you don't finish the sanctions within 90 days or the agreed time. The statute says an admission you make in the program cannot be used as evidence later. Participation also cannot turn a withheld adjudication into an adjudication of guilt. Even so, call us before you agree. Sometimes the program is the fastest way through; sometimes it isn't.

Mandatory modification for some first-time technical violations. Florida law requires the judge to modify or continue probation, rather than revoke it, when all of these are true: you are on probation (not community control), you are not a "violent felony offender of special concern," the violation is a low-risk technical violation, and you have not already been found in violation on a filed affidavit during this term. In that situation, the judge can add up to 90 days in county jail as a special condition. If less than 90 days of probation remain, the judge can instead revoke and impose up to 90 days in county jail. You can waive this protection, so don't waive it without talking to a lawyer.

Bond on a Probation Violation: Different Rules

Bond on a VOP does not work the way bond works on a new charge. For the general rules on bond for new charges, see Bond & Nebbia Hearings.

• The judge may hold you or release you. When you deny the violation, the judge can keep you in custody, release you with or without bail to wait for the hearing, or dismiss the violation.
• New-law violations at first appearance. If you were arrested for a VOP based on a new law violation, the first appearance judge must tell you what the violation is. If you deny it, the judge can hold you, release you with or without bail, or send you to the judge who placed you on probation. In deciding bail, the judge can consider whether you are more likely than not to receive a prison sanction for the violation. The statute says these decisions are made notwithstanding Florida's general pretrial detention and release statute. These first-appearance rules do not apply to the sex-offense and "violent felony offender of special concern" groups described below.
• Felony probation, arrested in another county. You can be taken before a court in the county or circuit where you were arrested. If you admit, you are sent back to the judge who placed you on probation. If you deny, that court can hold you or release you with or without bail.
• A "danger to the public" finding first, for certain sex-offense supervision. If you are on supervision for certain sex offenses listed in the statute, or are a registered sexual predator or sexual offender, the court must find that you are not a danger to the public before releasing you with or without bail. Under Rule 3.790, that hearing is held no sooner than 24 hours after arrest (you can ask for more time, and the State can with good cause), and you have the right to be heard, to present witnesses and evidence, and to cross-examine.
• No bail for a "violent felony offender of special concern." Florida law requires certain people on felony probation or community control to stay in custody until the violation is resolved, with no bail or other pretrial release, unless the only violation alleged is failing to pay costs, fines, or restitution. This includes a "violent felony offender of special concern" (for example, someone on felony probation for, or previously convicted of, a listed serious "qualifying offense" such as aggravated battery, aggravated assault, robbery, certain burglaries, or sexual battery), someone on felony probation who is arrested for a qualifying offense, and certain people previously found to be habitual violent felony offenders, three-time violent felony offenders, or sexual predators who are arrested for a qualifying offense. These definitions have date limits and other details, so whether they apply to you needs a close look. The judge cannot dismiss the warrant against these people without a recorded hearing with both sides represented.

If you are still in custody, or think you have a VOP warrant, the planning matters as much as on any new arrest. See Turning Yourself In.

The VOP Hearing

Rule 3.790 and the statute set the basic procedure:

1. You are told the charge. When you are brought before the court, the judge must tell you what violation is alleged.
2. Admit or deny. If you admit the violation, the judge can act right away: revoke, modify, or continue probation, or place you on community control. If you deny it, the judge can hold you, release you with or without bail to wait for a hearing, or dismiss the violation.
3. Your right to be heard. If you deny the violation and it is not dismissed, the court must, as soon as practicable, give you an opportunity to be fully heard, in person, through a lawyer, or both.
4. The State has to prove it. At the hearing, the State has to prove the violation, and the judge, not a jury, decides. The defense can challenge whether a condition was actually violated, whether the condition was clear, and whether the evidence is reliable.
5. A probation report. When you admit or are found in violation, the Department of Corrections must give the court a recommendation on what should happen, with its reasons. The court can waive this report.

If the issue is money. When the State shows you didn't pay restitution or the cost of supervision as directed, and you say you can't pay, Florida law puts the burden on you to prove by clear and convincing evidence that you don't have the present resources to pay despite sufficient good-faith efforts to get them legally. If you meet that burden, the judge must consider punishment other than imprisonment, and may imprison you only if those alternatives are not enough to meet the State's interests in punishment and deterrence. Bring proof of your income, expenses, job searches, and payments to your lawyer early.

What the Judge Can Do

After an admission or a finding that you violated probation, the court can:

• Continue probation as it was.
• Modify probation, for example by adding conditions, treatment, or jail time as a condition.
• Place you on community control instead of regular probation.
• Revoke probation. If probation is revoked, the judge must adjudicate you guilty of the original offense, if that hasn't already happened, and can impose any sentence that could have been imposed originally, up to the legal maximum for that offense.

Treatment courts. For some offenders whose underlying offense is a nonviolent felony and who meet other requirements in the statute, the judge can order a postadjudicatory drug court, mental health court, or veterans treatment court program instead.

When the judge must revoke. If the court finds that a violent felony offender of special concern violated probation (other than by failing to pay costs, fines, or restitution), it must make written findings on whether the person is a danger to the community. If the court finds the person is a danger, it must revoke and sentence up to the statutory maximum, or longer if the law permits. If not, the court can revoke, modify, or continue.

Tolled time. When probation was tolled, the statute lets the court impose a sanction that, combined with the supervision served and tolled, exceeds the normal statutory maximum by up to the amount of the tolled period.

Gain-time. If probation, community control, or the probation portion of a split sentence is revoked, Florida law treats the offender as having forfeited gain-time earned up to the date of release onto supervision. Gain-time earned after you return to prison is not affected.

Does Time on Probation Count?

Not toward a prison or jail sentence. Florida's statute is direct: no part of the time you spend on probation or community control counts as time toward a sentence you receive. If the judge orders a new term of probation after a revocation, you also don't get credit for the probation time already served toward that new term, although the new term combined with prior probation time cannot exceed the legal maximum. This rule is about time on supervision. Credit for days actually spent in jail is a separate question we review in every case.

A related rule on jail credit: when the court imposes jail under the mandatory-modification rule for a first low-risk technical violation, it may give credit only for county jail time served since your most recent arrest for the violation.

Community Control (House Arrest)

Community control is a tighter form of supervision than regular probation. Florida law describes it as a rigidly structured program built around home confinement, with limited freedom, special conditions, and intensive supervision, for people who would otherwise have been incarcerated. Caseloads are meant to be no more than 30 per officer. A judge can place a probation violator on community control.

Violations of community control follow the same procedures as probation violations. The margin for error is smaller: under the alternative sanctioning program, a violation that is low-risk for a probationer is moderate-risk for someone on community control, and failing to stay at your approved residence is itself a moderate-risk violation.

Standard Conditions of Probation, in General

The judge decides your conditions. Florida law lists standard conditions that the court does not have to announce out loud at sentencing. They include reporting to your probation officer as directed (remote reporting may be allowed), allowing home visits, working at suitable employment where possible, staying within a specified place, living without violating any law, paying restitution, supporting dependents, avoiding people engaged in criminal activity, random drug and alcohol testing, no firearms, and no weapons without the officer's consent, along with certain payments and fees. Judges can add special conditions. Read your probation order closely. A violation case often turns on exactly what the order says.

Common Situations We Handle

There's a VOP warrant out for you. Don't wait to be picked up at work or during a traffic stop. We can confirm the warrant, talk to the prosecutor, and plan how and when you go in, with a plan for bond where bond is possible. See Turning Yourself In.

You were arrested on a new charge. That new arrest can trigger a VOP even before the new case is resolved, since a conviction is not required. The two cases have to be defended together. What you say or agree to in one can affect the other.

You missed reporting or fell behind on fees. These are technical violations. Depending on your record and your supervision, the alternative sanctioning program or mandatory modification may apply. If money is the problem, documents showing your real efforts to pay matter.

You failed, or missed, a drug test. A positive test and a missed test are both listed low-risk violations for a probationer. There may be questions about how the sample was collected and tested, or about a prescription. Talk to us before you explain it to anyone.

What Not to Tell Your Probation Officer

Keep reporting as directed and never lie to your probation officer. But remember:

• Your probation officer is not your lawyer. The officer is often the person who writes the violation affidavit and testifies at the hearing.
• Don't explain, excuse, or admit the facts of a new arrest before you have talked to us. Statements about a new case can be used in both the VOP and the new case.
• Don't sign an admission or agree to an alternative sanction until a lawyer has reviewed it. Signing means giving up important rights.
• Don't guess or speculate about drug test results, missed appointments, or payments. Get your documents together and bring them to us.
• Do tell us everything. We can only protect you from what we know about.

Federal Supervised Release, in Brief

In federal court, the term that follows a prison sentence is usually supervised release. Under 18 U.S.C. s. 3583(e), after considering factors in the federal sentencing statute, the court can end supervised release early (after one year, if your conduct and the interest of justice warrant it), extend it (if less than the maximum term was imposed) or change its conditions, order you to stay home during nonworking hours, with possible electronic monitoring, but only as an alternative to prison, or revoke it. To revoke, the judge must find a violation by a preponderance of the evidence. On revocation, the person can be sent to prison for all or part of the supervised-release term authorized by statute for the original offense, without credit for time already spent on supervision, subject to caps that depend on the class of the original offense: up to 5 years for a Class A felony, 3 years for Class B, 2 years for Class C or D, and 1 year in other cases. Other parts of the statute can change the outcome in specific cases, so federal violations need their own review.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

You can read about some of our past cases on our Results page.

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Frequently Asked Questions

Is there a jury at a probation violation hearing?

No. The judge hears the evidence and decides whether you violated probation.

Can I be violated for a new arrest if I haven't been convicted?

Yes. Florida law says a conviction is not necessary for a new law violation to count as a probation violation.

Can I get a bond on a VOP?

Sometimes. The judge can release you with or without bail, or hold you. For certain people, including a "violent felony offender of special concern," Florida law requires custody until the violation is resolved, except when the only violation is failing to pay costs, fines, or restitution.

What is the most the judge can give me?

If probation is revoked, the judge can impose any sentence that could have been imposed on the original offense, up to the legal maximum. That is why every VOP deserves a real defense.

Does my time on probation count toward my sentence?

No. Florida law says time on probation or community control is not counted as time toward a sentence.

Should I just admit it and get it over with?

Not before talking to a lawyer. An admission can lead straight to a sentence. There may be defenses, mandatory modification, or treatment options you would be giving up.

How fast can you help?

Our office answers 24 hours a day. Call (305) 209-0384.