Evidentiary Issues in a VOP Hearing

Probation in Florida is a privilege, not a right. Still, if someone who has been sentenced to probation is accused of violating the privilege, the prosecution is, at minimum, required to establish that the probationer “willfully and substantially” violated a condition of his or her sentence.

More specifically, under state law, a probation revocation will be deemed appropriate when an individual violates probation “in a material respect.” That said, in cases where an individual makes a reasonable effort to comply with a condition of his or her probation, the violation cannot be deemed “willful.”

There are generally a few common types of violations, such as failed drug tests, failure to meet financial requirements, failure to complete court-ordered programs, missed appointments and the commission of new criminal offenses during the original probation period.

Once a probationer has been found to have violated his or her probation, the supervising officer will send an Affidavit of Violation to the court (and in cases involving a felony, a Department of Correction Violation Report will also be sent). Once the court receives the affidavit, the presiding court will look over the allegations, determine if reasonable grounds exist and issue a warrant for the probationer’s arrest.

The probationer will be arraigned on the violation charge and an evidentiary hearing will be set. As mentioned above, this is when the prosecutor will be required to prove, by competent evidence, a willful and substantial violation. But, what are some of the issues associated with violation of probation (VOP) hearings?

The Defendant Can Be Made to Testify

In most criminal proceedings, a defendant has a 5th Amendment right not to incriminate him or herself by being made to testify. However, defendants on probation in Florida waive that right when they accept the terms of probation, and accordingly, they can be made to testify at their own VOP hearing with respect to probation-related issues.

Please note, though, that the probationer’s 5th Amendment rights still apply with respect to circumstances and conduct relating to cases involving a separate criminal offense.

Hearsay Admissibility

In criminal trials, hearsay is usually inadmissible; however, in VOP hearings, hearsay is typically admitted. Still, it may not be used as the only basis for finding a violation of probation. Instead, it can be used in conjunction with admissible evidence that demonstrates the violation.

By way of example, the Florida trial court in Bertoloti v. State revoked the defendant’s probation because the individual failed to finish a drug treatment program. The only evidence submitted during the hearing was testimony from the program’s records custodian who stated the individual tested positive for alcohol. Ultimately, the court found that testimony to be hearsay and since it was the only evidence provided on the issue, it could not be used as the sole reason for revoking the individual’s probation.

If you or a loved one has been accused of violating probation in Sarasota or elsewhere in Florida, you are encouraged to seek legal counsel from a Sarasota probation violation attorney at the Fowler Law Group right away. Given the intricacies of the law and the technical nature of POV hearings, having an attorney by your side is crucial to ensure all potential legal options are pursued. Call our office today at (941) 900-3100.

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