What happens at a probation violation hearing in Florida?

A violation of probation, often called a VOP, is not a new criminal case. It is a claim that a person already sentenced broke a condition of supervision, and it is decided under section 948.06 of the Florida Statutes and Rule 3.790 of the Florida Rules of Criminal Procedure. This page walks through the hearing itself in Palm Beach, Broward, Miami-Dade and Martin counties. Whether someone can be released while waiting for it is a separate question, covered in bond on a probation violation in Florida. Other stages of a criminal case are mapped on our criminal defense practice areas page.

How does a violation case reach the hearing, step by step?

1. The violation is reported. A probation officer files an affidavit of violation and the judge issues a warrant, or an officer arrests without a warrant on reasonable grounds of a material violation (s. 948.06(1)(a), (b)). For someone never convicted of, and not now accused of, a "qualifying offense," the judge may send a notice to appear instead of a warrant (s. 948.06(1)(b)). The chief judge may also allow a notification letter for some technical violations (s. 948.06(1)(h)).
2. Probation stops running. Once the affidavit is filed and a warrant, warrantless arrest or notice to appear follows, the probation period is tolled until the court rules (s. 948.06(1)(g)).
3. A first appearance, if there was an arrest. For a new law violation, the first appearance judge informs the person of the violation and may send the case to the sentencing judge if it is admitted (s. 948.06(1)(e)). A felony probationer arrested in another county may first be taken before a court there (s. 948.06(4)).
4. The arraignment on the violation. Before the court that granted probation, the person is advised of the charge of violation. If it is admitted, the court may revoke, modify or continue probation right then (s. 948.06(2)(a); Rule 3.790(b)(1)).
5. The evidentiary hearing. If the violation is denied and not dismissed, the court must, "as soon as may be practicable," give the person an opportunity to be fully heard in person or by counsel (s. 948.06(2)(d)).
6. The recommendation and the decision. When a violation is admitted or found, the Department of Corrections must give the court a recommendation on disposition with its reasons, unless the court waives it (s. 948.06(2)(i)). The judge then decides what happens to the probation (s. 948.06(2)(e)).

What rights do you have at the hearing?

The statute and the rule both say the person must have an opportunity "to be fully heard" on his or her own behalf, in person, by counsel, or both (s. 948.06(2)(d); Rule 3.790(b)(1)). The law also shows what those rights include by listing what a probationer gives up to take an alternative sanction instead of a hearing. Under s. 948.06(9)(h), a person who chooses the program waives the right to:

• be represented by a lawyer;
• require the State to prove the violation before a neutral and detached hearing body;
• subpoena witnesses and present evidence to a judge;
• confront and cross-examine the witnesses against him or her; and
• receive a written statement from the judge of the evidence relied on and the reasons for the sanction.

A person who cannot afford a lawyer can ask the court about appointed counsel; how that is decided is explained in public defender or private lawyer in Florida. When a felony probationer's hearing is held in the county of arrest under s. 948.06(4), that court must make findings of fact, and those findings bind the court that granted probation.

What can the judge do after finding a violation?

If probation is revoked, the court adjudges the person guilty unless he or she was already adjudged guilty (s. 948.06(2)(b)). That is how a revocation can end a withhold, a result explained in what a withhold of adjudication means in Florida. The ceiling for each degree of crime is listed in our chart of Florida criminal penalties.

Should you admit the violation or take an alternative sanction?

Every circuit must run an alternative sanctioning program for technical violations, meaning violations that are not a new felony, misdemeanor or criminal traffic offense (s. 948.06(1)(c), (9)(a)). In Palm Beach County, the 15th Circuit says its program for felony probationers is limited to technical violations by nonviolent probationers, and that referrals follow Administrative Order 4.411.

• Low-risk violations include a positive drug or alcohol test, failing to report, missing a class or treatment session, a curfew violation, falling behind on a monthly payment or community service quota, and leaving the county without permission (s. 948.06(9)(b)).
• Possible sanctions for a first or second low-risk violation include up to 5 days in county jail, up to 50 more community service hours, counseling, drug testing, or a curfew or house arrest for up to 30 days (s. 948.06(9)(e)).
• Who is not eligible: a violent felony offender of special concern, anyone accused of a new offense, absconding, a stay-away or no-contact violation, or a term ending in less than 90 days, among others (s. 948.06(9)(d)).
• It is voluntary. The person may decline or withdraw before the court imposes the sanction (s. 948.06(9)(g)). If the person drops out or does not finish, the officer may file an affidavit, but the earlier admission may not be used as evidence later (s. 948.06(9)(j)).
• A withhold stays a withhold. Taking part in the program does not turn a withheld adjudication into a conviction (s. 948.06(9)(e)9.b.).

Admitting the violation in court is different. An admission lets the judge revoke, modify or continue probation immediately (s. 948.06(2)(a)), so it is usually worth knowing the likely outcome before deciding.

Where are violation hearings held in South Florida?

Violations are heard by the court that granted probation, so the original case decides the courthouse. In Palm Beach County, the State Attorney's branch office at the Criminal Justice Complex on Gun Club Road handles first appearances, arraignments, custody matters and violations of probation, as described on our Palm Beach County jail and first appearance page. In Broward, anyone arrested and not released first sees a judge at first appearance at the courthouse in Fort Lauderdale, covered on our Broward Central Courthouse page. For Miami-Dade, what to expect after an arrest is covered on our Gerstein Justice Building page.

What changes the answer?

• Technical or new law violation. A new arrest removes the alternative sanction option (s. 948.06(9)(d)2.) and can bar release before the hearing (s. 903.0351(1)(b)).
• Violent felony offender of special concern. The court must hold a recorded hearing before dismissing the warrant, make written findings on danger, and revoke if it finds danger (s. 948.06(8)(d), (e)).
• Prior violations in the same term. The mandatory modification rule applies only if no violation was found earlier in the current term on a filed affidavit (s. 948.06(2)(f)1.d.).
• Little time left. With less than 90 days remaining, a qualifying probationer may instead be revoked and sentenced to up to 90 days in county jail (s. 948.06(2)(f)3.).
• Money violations. A person who claims inability to pay restitution or supervision costs must prove it by clear and convincing evidence; if that showing is made, the court must consider alternatives to jail first (s. 948.06(5)).
• Felony scoresheet points. At sentencing on a felony violation, 6 points are added for each violation, or 12 when it includes a new felony conviction, with higher counts for a violent felony offender of special concern (s. 921.0024), as shown in how a Florida felony sentence is calculated.
• Time already served. Time on probation does not count toward a later sentence, and on revocation the person loses gain-time earned before release (s. 948.06(3), (7)).
• DUI probation. DUI sentences carry their own conditions, described in the conditions of DUI probation in Florida.

A worked example

For example, picture a hypothetical woman on felony probation in Broward for a third-degree felony who has never been found in violation before. Her officer reports that she missed two appointments. Both are low-risk technical violations, so she is offered an alternative sanction of 20 extra community service hours, which she may accept or decline. If she declines and the case goes to a hearing where the judge finds she violated, the law requires the judge to modify or continue her probation, because it is probation, she is not a violent felony offender of special concern and this is her first violation in the term; the judge may add up to 90 days in county jail as a condition. If instead the violation were a new arrest for aggravated assault, a qualifying offense, none of those protections would apply and the judge could revoke and impose any sentence available for the original charge. This illustration is not a prediction for any case.

Common mistakes people make

• Admitting the violation at the first court date before seeing the affidavit and the likely outcome.
• Turning down or accepting an alternative sanction without knowing which hearing rights it waives.
• Arriving without proof of compliance, such as reporting records, class certificates or payment receipts.
• Discussing a new arrest with the probation officer without advice; the Department's recommendation on the violation goes to the judge (s. 948.06(2)(i)).
• Claiming inability to pay without pay stubs, bills and records of efforts to pay, which the law requires to be shown clearly and convincingly (s. 948.06(5)).
• Ignoring a notice to appear on a violation because no one was arrested.

What to do this week

1. Get a copy of the affidavit of violation or the notice to appear and list each condition it says you broke.
2. Write down the original case number, the judge and the date probation began.
3. Gather proof of compliance: reporting logs, test results, certificates, receipts and work schedules.
4. If money is the issue, collect pay stubs, bills and any letters showing efforts to pay.
5. If you were offered an alternative sanction, keep the written notice and the evidence disclosed with it.
6. Talk to a defense lawyer before the arraignment on the violation.

Frequently asked questions

Is there a jury at a probation violation hearing?

No. The statute gives the decision to the court: after the hearing, the court may revoke, modify or continue probation (s. 948.06(2)(e)).

How soon is the hearing held?

The statute says "as soon as may be practicable" once a violation is denied and not dismissed (s. 948.06(2)(d)). The actual date depends on the division's calendar and on whether the person is in custody.

Can the judge give me more time on probation?

It can. After a finding of violation the court may modify probation (s. 948.06(2)(e)), and after a revocation it may impose a new term of supervision, but that new term, combined with time already served on probation for the same offenses, cannot exceed the statutory maximum (s. 948.06(3)). When probation was tolled, the court may go beyond that limit by up to the tolled period (s. 948.06(2)(g)).

What happens if the violation is dismissed?

Probation continues as it was, and the person gets credit for all the tolled time (s. 948.06(2)(h)).

Do I get credit for the time I spent on probation if I am sent to jail or prison?

No. The law says no part of the time on probation counts toward the sentence the person must serve (s. 948.06(3)). Jail credit for time held on the violation is a separate question to raise at sentencing.

Can my probation end early instead of being violated?

Florida has a separate early termination process for people who have met their conditions, explained in whether probation can end early in Florida.

How can Mr. Mead help?

Mr. Mead has more than three decades of criminal defense experience in South Florida, in Palm Beach, Broward, Miami-Dade and Martin counties. In a violation case, he can review the affidavit and the probation order, gather proof of compliance, advise on whether to admit, deny or take an alternative sanction, and present the defense and mitigation at the hearing. His defense approach is described on our probation violation defense page. Every case is different, and no result can be promised. The consultation is free, and you can call (561) 362-6677 24 hours a day.

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