The Probation Trap
Martin County Judge Steele often says that probation is like having one foot in jail, one foot out of jail. If you complete all of the conditions and stay out of trouble, you will have no problems. If you don’t, the consequences will be severe.Everybody who takes a deal to go on probation on the Treasure Coast and Palm Beaches believes that they can successfully complete the probation without any problems. Most are wrong.
Completing all of the conditions and staying out of trouble is often much harder than the probationer first anticipated. Most find themselves dealing with a violation of probation.
A violation of probation occurs when a probationer breaks a rule of probation, does not complete a special condition within the specified time, or gets arrested for a new charge. Often, probationers describe their violation as a technical one – one where the rules were broken or a condition was not met, but no new law was violated. The fact of the matter is, whether a violation of probation is technical or substantive, it reopens the case and exposes the probationer to the maximum sentence for the original charges.
Think about that. Sometimes probation is offered by the State Attorney because the evidence against a defendant is not perfect, or there is a chance of an acquittal if the matter goes to trial. The Defendant might agree to take the probation because no jail is on the table and he doesn’t want to risk a trial, even if he feels he has not committed the alleged crime. But, once that Defendant violates his probation, the State Attorney no longer has to prove that he committed the original offense charged. All that needs to be proven is that a rule of probation was broken or a term not completed. This proof is not submitted to a jury – a judge makes the call. And, the standard of proof is the civil standard, “A preponderance of the evidence,” rather than the higher standard for the original charge, which is proof “beyond a reasonable doubt.” In other words, a judge must find that it is more likely than not that the violation occurred, and that it was willful and substantial.
Because the standard of proof for a violation of probation is less than that for a criminal charge, many probationers often find themselves in a situation where they were arrested for a new charge, that charge was dropped, but the probationer was still found in violation of probation and resentenced on the underlying charge – sometimes to prison.
Here are a few tips to stay ahead of your probation:
- Read and re-read all of the rules of probation. The more times you read them, the more clear they will become.
- Do not do anything out of your normal routine without re-reading your probation rules and/or contacting your probation officer directly. This is one situation where asking for forgiveness is not better than asking for permission. The more contact you have with your probation officer, the better your chances are that you will not violate.
- Keep your probation officer’s phone number in your phone and in your memory. And don’t be afraid to use it. Do not think you are being a pest. It is your job to check with your probation officer and it is their job to monitor you.
- Pay all of your costs up front or as quickly as possible. Failure to pay costs is a violation of probation if the State can prove you had the ability to pay the costs and you failed to do so. If you cannot pay the costs and you are half way through the probation or more, ask your lawyer and/or probation officer about getting some or most of the costs converted to community service. You cannot pay off restitution to victims with community service, but you can take care of most of the costs involved.
- Do not break the law. Do not drive without a license. And do not hang out with people that break the law. Surprisingly, this is often the most difficult thing for probationers.
You are in the system now and it is very difficult to get out. The faster you do so, the better. You can complete probation, but it must always be on the front of your mind, not the back of your mind. And if you know that you are playing in a grey area, it is best to get out. Probation really deals with a black and white world.
Speak with a skilled attorney about the facts of your case and your individual needs. Sometimes, probation is not the best alternative for you. But if it is, keep these things in mind and you should be able to successfully escape the probation trap.