Revoking Probation ! Guidelines

REVOKING PROBATION ( By: Melvin Perez). In this writing I will outline the basic process regarding probation revoking proceedings. Any person intending to argue or challenge a probation violation should use the cases in this writing to start their research. Willful and Substantial. As an initial matter, an order revoking probation is reviewed on appeal for an abuse of discretion. See, State v Carter, 835 So. 2d 259, 262 (Fla 2002)(noting that the appellate court determines " whether or not the trial court acted in an arbitrary, fanciful, or unreasonable manner in determining that violation was both willful and substantial"). Importantly, to trigger revocation of probation, a violation must be willful and substantial. See, Burgin v State, 623 So. 2d 575, 576 (Fla. 1thDCA 1993). Reasonable efforts to comply with a condition of probation cannot be deemed a willful violation. See, Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1th DCA 1996). In a revocation proceeding, the State must prove its case by a preponderance of the evidence. See, Hopewell v State, 680 So. 2d 600 (Fla. 2d DCA 1996). In very rare circumstances, a trial judge exceeds the broad limits of discretion and commits fundamental error error that "reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error," in which instances no contemporaneous objection is required. See, Reed v State, 837 So. 2d 366, 370 (Fla. 2002)(quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960)). Notice Requirement. [P]robationers are entitled to notice 'of what law the probationer is alleged to have violated.'" See, Andrews v State, 693 So. 2d 1138, 1141 (Fla.1th DCA 1997)(quoting Burton v State, 651 So. 2d 793, 794 (Fla. 1th DCA 1995)). "[T]he language used in a condition of probation is determinative of a probationer's duties and responsibilities while on probation." See, Stanley v State, 992 So. 2d 411, 414(Fla 5thDCA 2006). "[T]he violation must mirror the language of the condition of probation allegedly violated." 415. The revocation of a defendant's probation based on a violation not alleged in the charging document is a deprivation of the right to due process constituting fundamental error. See, Richardson v State, 694 So. 2d 147(Fla 1thDCA 1997) Smith v State, 738 So. 3d 433, 435(Fla 1thDCA 1999) Dulaney v State, 735 So. 2d 505(Fla 1thDCA 1999). By analogy, revoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error. Failure to Pay. Once nonpayment is shown, the probationer has the burden under section 948.06(5), Florida Statutes, to prove, by clear and convincing evidence, his or her inability to pay. See, Martin v State, 937 So.2d 714, 716 (Fla 1thDCA 2006). "[B]efore a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so." Stephens v State, 630 So.2d 1090, 1091(Fla 1994) See, Bryant v State, 546 So 2d 762(Fla 5th DCA 1989). The same principle applies to the requirement to pay the costs of probationary supervision. Section 948.06(5) does not relieve the trial court of its duty to determine that the violation was willful by proving the probationer's ability to pay.See, Martin, 937 So.2d at 716 Blackwelder v State, 902 So.2d 905, 907 n. 1(Fla 2d DCA 2005). In Friddle v State, 989 So.2d 1254, 1255( Fla 1th DCA 2008), the court held that revoking the defendant's probation based on his failure to pay restitution, without a specific finding that he had the ability to pay, compelled reversal. End Note. Learn about your rights and how to enforce them, you never know when that knowledge can be put to good use. Until the next one, stay focused and best wishes in your legal claim.

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