Probation is a sentence that can be imposed by way of a plea agreement
between the accused and the State Attorney's Office, or it can be
a judicial sentence imposed by the Court. The Court (the judge) may impose
probation if the accused pleas openly to the Court (called a Court plea)
or if the accused is sentenced upon being found guilty at
trial.
Probation is a sentence that is typically given in lieu of jail, although
jail time (up to 364 days) can be made a condition of probation. From
the State Attorney's prospective - and I should know, having
worked for the Miami-Dade State Attorney's Office - that prosecutors offer probation when the accused has little or no criminal
history, the State's case is weak, or their are mitigating factors
that lessen the culpability of the offense, such as mental health disorders
or drug addictions.
A probationary term can be imposed with a
withhold of adjudication (not a conviction) or an adjudication (conviction). Probation can be given on a
misdemeanor or on a felony.
The term of probation cannot exceed the
maximum penalty for the crime. For example, if you are placed on probation for
battery (a first-degree misdemeanor), the maximum term of probation on that charge
is one year. If you have multiple counts, such as battery and criminal
mischief, the judge can impose a probationary sentence consecutively,
that means, you serve one year of probation on the battery count, followed
by a consecutive year on the criminal mischief count.
For felonies, the same rules apply. The term of probation cannot exceed
the statutory maximum for the charge. If you are on probation for aggravated
assault (which carries a maximum of five years), the maximum term of probation
is five years.
Now, probation is always better that jail or prison, but by no means is
probation a walk in the park. There are plenty of people serving time
in Miami and Broward jails, as well as Florida prisons, for probation
violations. A probation violation occurs when a person on probation fails
to perform or complete a condition of probation, fails to pay costs, fees, or
restitution, or gets arrested for a new charge (new law violation). If you violate
probation, you can be sentenced up to the maximum penalty that the charge
(or charges) carry. If you are given two years probation for the charge of
burglary of an unoccupied dwelling, your maximum exposure on a probation violation is not the term of probation,
but the maximum penalty for the charge. Since burglary of an unoccupied
dwelling carries fifteen years in Florida, you face fifteen years in prison
on a violation.
Probationary terms can vary, depending on the crimes. For misdemeanors
and third-degree felonies, terms can range from six months, up to two
or three years. For second-degree, first-degree, and life felonies, the
terms can be high, such as five, ten, even fifteen years.
As a
criminal defense attorney who handles probation matters in both Miami-Dade County and Broward County,
I am aware that when a client is on probation or is offered probation
as a plea agreement, there are several detail that must be worked out.
First of all, I am a firm believer in early termination. That is, asking
the Court to end the probation early if the client is performing well.
For instance, if you are on probation for two years, and after one year
you have completed all conditions, remained free of arrests, and stayed
current on your costs, I would ask the Court to end the term of probation
early. This not only closes the case, it gets the client out from under
the exposure of a probation violation. If the client has received a withhold
of adjudication on a qualifying offense, I can then
seal the record.
Click here to determine whether you are eligible to have your case sealed.
Probation can be a blessing when the client is facing a lengthy prison
term, but it can also be a tough sentence to abide by. Clients should
be fully aware of all conditions of the probation, and what is expected
of them. People violate for stupid reasons, such as failing to report,
testing positive for marijuana use, or failing to pay a $35 drug-testing
fee. Ask your Miami-Dade County criminal defense lawyer to explain to you
the conditions of probation. And if you are on probation but have violated,
contact a Miami-Dade County probation violation attorney who practices in
the Miami and Broward Courts.
Call me today to discuss your probation matter.