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A violation of probation hearing is handled much differently than a substantive criminal charge. Both the procedure and standard of proof are far different in violation of probation hearings. In order to grasp the difference between criminal trials and violation of probation hearings, it is critical to know what exactly probation is. A defendant doesn't have a right to get placed on probation. Rather, probation may be described as a "state of grace" from the court as an alternative to incarceration. Probation allows a person, who would otherwise be incarcerated, the chance to avoid incarceration contingent on complying with rules set forth by the court. The rules are usually fairly simple. Typical rules usually include, not committing any new criminal offense, show up to your appointments with your probation officer, paying court costs, paying restitution and passing random drug and/or alcohol tests. If someone is not in compliance with all the terms of probation, the probation officer can file a violation report. The probation officer may arrest the individual immediately, obtain an arrest warrant or simply provide the defendant with a copy of the violation report plus a court date. The officer's decision regarding how to proceed is determined by office policy regarding the type of violation and the officer's discretion. The alleged violation of probation will go back in front of the original sentencing judge absent extraordinary circumstances. It is important to understand the procedural differences between probation violations and substantive criminal offenses. While there is no right to be on probation, the State must still afford the accused due process in order to revoke or modify the terms of the defendants probation. Due process for purposes of the violation of probation hearing consists of notice of the allegations against the accused and also a meaningful opportunity to be heard regarding the allegations. Other salient differences and the reasoning behind the differences are as follows. The United States Constitution provides for a Defendant's right to a speedy trial. However, the right to a speedy trial only applies to a substantive criminal offense. Likewise, the United States Constitution provides for a Defendant's right to a trial by jury. However, the right to a trial by jury only applies to a substantive criminal offense. Although there isn't any right to a speedy violation of probation hearing, the hearings do tend to be handled in an expedited manner. As a result of expeditious manner in which the hearings are held, discovery rights are limited. Probably the most crucial difference between substantive criminal charges and violation of probation hearings is the standard of proof required revoke probation versus convict on a criminal charge. The United States Constitution provides that somebody can only be found guilty if the State can prove the individuals guilt beyond a reasonable doubt. Stemming from the fact that a violation of probation hearing isn't a criminal offense, the standard of proof required to revoke probation is significantly less than what is necessary to obtain a criminal conviction. Many ways are used to express the standard of proof required to find someone responsible for the probation violation. One is "enough evidence to satisfy the conscious of the court." Another, more simple, way that it's expressed is "by the preponderance of the evidence." Quite simply, if the Judge believes the defendant committed the violation of probation, the defendant will be found responsible for the violation. Under Florida Law, once an individual is found responsible for a violation of probation, the sentencing options are opened back up. The Judge has the authority to revoke probation and order the defendant be incarcerated, modify the terms of probation or terminate the probation. The decision is in the Judge's discretion and the Judge will take note of the defendant's prior criminal record plus the character of the violation.
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