Can You Appeal a Probation Violation?
If your probation is in jeopardy due to a violation, that decision can probably be reviewed on appeal. But there are limits on what you can appeal and how.
If the decision is not successfully challenged, you may face:
- Longer probation
- Additional terms
- Serving time in jail because your probation has been terminated
What is Probation?
Probation is an alternative to incarceration. It’s a type of community supervision where you must obey a set of court-ordered terms and conditions to avoid spending time in jail. It’s considered a privilege, so you don’t have a legal right to probation.
You might be granted probation because the facts of your case don’t warrant jail time. There is also little space in Florida prisons, and housing, controlling, feeding, and providing medical care to inmates is very expensive.
What is a Probation Violation?
There are two types of violations, including:
A substantive violation occurs if you commit another crime while on probation. You may be found to have violated probation even if you’re found not guilty of the second crime.
A technical violation occurs if you don’t comply with the terms of your probation, such as:
- Passing alcohol and drug tests
- Getting and keeping a job
- Reporting to your probation officer
- Paying restitution
- Performing community service
- Staying within the jurisdiction
- Not having access to firearms
- Making court appearances
What to Do After a Probation Violation?
The issue would be resolved at a parole violation hearing under Florida law. Before the hearing, if your probationary officer believes you committed a violation and has facts to back that up, they will prepare an Affidavit of Violation or a Department of Corrections Violation Report for felony cases.
The presiding judge reviews it, decides if reasonable grounds support it. If reasonable grounds support it, the judge issues an arrest warrant or a notice to appear.
How Will the Final Decision Be Made?
The burden of proof is much lower than a traditional criminal proceeding. It’s the same level as a civil lawsuit where the preponderance of the evidence shows your guilt. This is unlike a criminal trial where the evidence supports a conviction beyond a reasonable doubt.
There’s also no jury, so a judge decides the matter.
You May Be in Jail Until Your Hearing
You have no right to a bond. Therefore, you may be incarcerated until your hearing. You’ll be arraigned, and the evidentiary hearing determines if the prosecution can prove you willfully and substantially violated your probationary terms.
A Conviction Could Be Costly
If the decision goes against you, probation may be revoked, and you could serve time in prison. Your terms could also become more difficult because of your conviction, or you may get a warning.
Can You Appeal Probation Violations in Hillsborough County?
Yes, an order revoking your probation is appealable, but you must file your notice of appeal within 30 days of the judgment or sentence. If that deadline is missed, the appeal will be dismissed.
The grounds for your appeal depend on the facts of your case. You may dispute the following:
- Whether there was enough evidence to convict you
- Whether the evidence was based too heavily on hearsay (what others said you did)
- Whether the evidence shows the violation was willful and substantial
If you’re successful, you may get a new hearing, a new sentence, or your probation may be reinstated. The Second District Court of Appeal would decide the case.
Contact a Probation Violation Defense Lawyer in Tampa
Brett Metcalf, Criminal Defense Attorney, P.A., is a dedicated, experienced Tampa attorney who defends and protects the rights of those accused of violating probation. He understands that allegations can cause you to fall deeper into the criminal justice system at a time when you’re trying to get out.