Know Your Rights
FACTS & RIGHTS
FACTS & Your Rights
IMPORTANT FACTS & RIGHTS YOU SHOULD KNOW REGARDING YOUR VIOLATION OF PROBATION CASE
If you are involved in a Violation of Probation (VOP) case, you should know your rights and the important facts surrounding this kind of case. Therefore, please read the following carefully and if you have any questions, ask your lawyer for assistance.
Your Probation Officer (PO) has alleged that you violated your probation by filing an Affidavit of Violation of Probation with the Court. Generally, a VOP Affidavit alleges that you, as the probationer, violated one or more general and/or special conditions of your probation.
The following are examples of probation conditions that an affidavit may list as being violated:
Keep in mind: special conditions of your probation depend on what the court ordered at the time you were convicted of the original offense. The ones listed above are only examples and may not apply to you.
Once the VOP Affidavit has been filed with the Court, the Judge then signs a VOP Warrant, which is then delivered to the Sherriff for execution (service on you which usually means you’re arrested).
Whether you realize it or not, you may have factual and/or legal defenses to the VOP allegations. You should discuss your possible defenses with your lawyer as soon as possible. You should also keep reporting to probation when possible.
You have the right to be represented by an attorney at every stage of your VOP. In this case, the court has appointed a lawyer from the Public Defender’s Office to represent you, but you still have the right to hire another lawyer if you choose to do so.
- Discuss Your Case With Your Attorney:You should discuss any questions or information you may have with your attorney.
Everything that you tell your attorney in confidence (excluding future crime or fraud) is privileged and confidential---protected by attorney-client privilege.
- Satisfaction With Your Attorney: Overall, you should feel that your attorney has represented you to the best of his/her ability and be satisfied with this representation.
This does not require that you will be happy with the ultimate outcome of your case.
- Assist In Your Defense By Cooperating With Your Attorney: Your cooperation with your attorney is extremely important in preparing your defense. Take care to:
- Show up on time to court dates and attorney appointments;
- Provide and update your contact information;
- Provide all papers, physical evidence, and witness information to your lawyer as soon as possible;
- Important witness information includes names and addresses;
- A witness may be anyone who can testify to circumstances that show you are either: (a) not guilty or (b) that the crime was not as serious as the prosecutor claims.
- DO NOT talk to any prosecution witnesses or send anyone to talk to them for you. If you do, you could be charged with tampering with witnesses.
- Be open and honest with your lawyer at all times.
- Even if you are guilty, think you are guilty, or the truth makes you look guilty, you must tell your attorney the truth so they will better be able to represent you.
You have the right to a hearing before the Judge on the issue of whether you violated terms of your probation. There are no jury trials in a VOP proceeding.
- State’s Burden Of Proof: In a VOP Proceeding, the State must prove that you willfully and substantially violated a material condition of your probation by a preponderance of the evidence (meaning “more likely than not”).
- The state will introduce evidence against you
- Your attorney may introduce evidence on your behalf
- After hearing the evidence, the Judge makes a decision.
- Right To Subpoena & Question Witnesses: Through your attorney you have the right to subpoena the attendance of witnesses on your behalf at a VOP hearing.
You should discuss with your lawyer ALL potential witnesses and what their respective testimony could be.
- Right To Cross-Examine Witnesses Against You: At the VOP hearing your attorney can cross-examine the witnesses against you by asking them questions which they have strategically developed.
Your suggestions are requested, but your attorney is not required to ask questions of your choosing.
- You DO NOT Have The Right To Remain Silent At A VOP Hearing: The state has the right to require you to take the stand and testify (except regarding the substance of any alleged new law violations).
- The Outcome Of Every Hearing Is Unpredictable: The outcome of your case depends on the evidence against you, any evidence in support of your defense(s), and your explanation(s) to the alleged VOP. There is no way to predict what the Judge will decide.
If the Judge finds that you willfully and substantially violated the terms of your probation, then he/she may do any of the following:
- Adjudicate you guilty ,if not previous done;
- Continue and/or modify your probation; or
- Sentence you to jail (up to the maximum statutory sentence for the original offense).
- Until your probation term expires or
- When you are deemed eligible for early release.
- Sentencing: If you are to be sentenced you will have the opportunity to speak with the Judge at the sentencing hearing, but you are not required to do so. You should discuss your options with your attorney.
Your attorney and other interested parties may speak on your behalf.
- Give your attorney the names, addresses, and contact information of anyone you would like to speak at your sentencing.
At your arraignment, you entered a plea of “denial” to the allegation(s) of violation of probation. Just as you have the right to maintain your Denial and go to a hearing for the Judge’s decision, you also have the right to change your plea to “Admission.”
- Only you have the right to change your plea
- If you change your plea to admission you give up all of the rights discussed above.
- This is a very important decision and should only be made after discussing your case with your attorney.
- Waiver Of Right To Hearing: If you want to change your plea to Admission, then you give up your right to a hearing before the judge. In giving up your right to a hearing, you also give up: your right to have motions filed and witnesses interviewed and the right to present any defenses you may have to the VOP allegations.
- Admitting A Factual Basis For The VOP Allegations: When you admit to violating your probation, then you admit that there is a factual basis for any and all allegations.
- Waiver Of Appeal Rights: If you plead Admission, then unless you expressly reserve the right to appeal prior rulings of the Court (i.e. such as a motion that was denied), you will give up the right to appeal all matters related to the Court’s judgment, including your guilt or innocence.
The only right to appeal that you retain is regarding sentencing.
- You Will Only Know Your Sentence In A Negotiated Plea Deal: If a plea deal is negotiated, and you agree to its terms, then you will know in advance the parameters of your sentence except:
- The Department of Corrections or Sheriff’s Office (whichever applies to your case) is responsible for awarding gain time, any type of early release, and they calculate your jail credit.
- Any time you spend in residential treatment is not considered jail time, and therefore will not be counted against any jail sentence
- Any information you receive from your attorney regarding any of these calculations is strictly an estimate and not part of your plea agreement.
- Your Plea Must Be Voluntary: No one can force or threaten you to enter a plea of admission or take your case to hearing. These decisions are yours to make of your own free will.
- Adjudication Of Guilt: An “adjudication of guilt” is a “conviction,” and means that the court has entered judgment as to your guilt. A “withhold of adjudication” means that although you were found guilty by plea or jury verdict, the court has not entered a judgment of guilt against you (not technically a conviction in Florida).
If adjudication was withheld when you were placed on probation but your probation is revoked your “withhold of adjudication” will be changed to an “adjudication of guilt.”
- Potential Negative Consequences Of Criminal Conviction: There may be many negative consequences stemming from a criminal conviction, including but not limited to:
- jail or prison time;
- fines and court costs;
- driver’s license suspension;
- difficulty finding a job or housing;
- negative impact on credit rating;
- future sentence enhancements; and more.
- Deportation on non US Citizens: If you are not a United States Citizen, then any conviction, whether by plea agreement or finding of violation at hearing, may subject you to deportation pursuant to laws and regulations governing the United States.
If you are convicted and want to appeal your case, you must do so within 30 days after sentencing. An appeal will only help you if the Judge did not follow the law, or if you were prevented from properly exercising all of your rights.
You usually have no right to appeal from a plea of Admission if the sentence you receive is a legal one.
Because an attorney has been appointed to represent you by the Court, at the conclusion of your case, the Court may impose a lien for attorney’s fees associated with your case. If you cannot pay, it may be reduced to a civil judgment.