Can I Get A Bond If I’m Arrested For A VOP?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.

Hi, you are watching Florida Criminal Law TV. This is our special short series answering your questions. My name is Stephen G. Cobb, attorney at law, and let’s roll on into the next one because I am really enjoying this casual Friday segment, I love to answer people’s questions about Florida criminal law. It’s all I have done since July the 2nd of 1990, and I enjoy sharing that expertise with you, the viewer, and potentially someone who has been arrested or perhaps you have a family member or a friend who is going through the unfortunate process of Florida criminal law.

And our next question today on casual Friday is “Can I file for a bond hearing on a VOP”, a violation of community sanction known as probation? There is also community control, they are very similar in terms of how they are dealt with procedurally although probation is radically different from community control as experienced by a client or a criminal defendant. And the answer to the question, “Can I file for a bond motion”, yes, you certainly can. You can file a motion to have the judge stand on his or her head, you can file a motion to find that Satan is guilty of world problems and owes you a hundred billion dollars. You can file a motion for anything. But the question is, “Will it be granted?” When you are talking about violations of probation or violations of community control for that matter, you are talking about cases where the burden of proof the prosecutor has is by a preponderance of the evidence, so you can think like 51%, as opposed to a new case where the burden of proof is closer to say 97, 98, 99% and that standard is beyond into the exclusion of every reasonable doubt.

So, when you file a motion to set a bond in a probation case, the judge is keeping that information in the back of her or his mind. At the same time, they are also aware there is no right to a bond in a VOP case, and finally, if you are handling your case pro say, meaning you are self-representing, the odds of that motion being granted for bond are even lower simply because you do not know what you are doing in a court of law.

Now, if your lawyer looks at your case and they review the facts and they go through everything, sometimes we will sit there and we will go, “Wait a minute! Based on this, this, this, and that, we think that this person should get a bond because we are going to be arguing they should not get a jail or prison sentence because of this, that, and the other”. And so, the filing for a motion to set a bond in a VOP case is one that as a lawyer, you make that as a judgment call as part of tactics and strategy. Now, at the same time, if a client says, “I demand that you file a bond hearing”, your lawyer has to do it but you or your loved one has a really bad problem. It is called “Poisoning the well”. Just because you can file a motion does not mean you should file a motion. And if you poison the well early in the negotiation process, that can result in a harsher sentence than would normally be imposed if found in violation of probation or community control. Additionally, here is something else to consider. Sometimes, I will have a probation violation case where someone does or does not have a bond but we can pretty much figure out that there is not going to be incarceration on the table. If that person is out on bond, we do not need to file a motion to set a reduced bond but we can file for either an earlier court date to dispose of the case or if it is a misdemeanor, quite often use written pleadings instead of a court appearance at all.

Now, someone is in jail pending their probation violation or community control violation hearing, it’s not unusual for their first court date to be scheduled really far out. We are talking like six weeks, seven weeks and that is an arraignment, a formal charging because the docket that you are placed on with a probation violation or a community control violation is what is known as the Will Call Docket, meaning we will set that later. Now, that might already have been set at the beginning or end of the previous year when the judge’s calendar is made out for the next year but in reality, what that means is your loved one is sitting in jail for a long period of time before you even go to arraignment. If you know that the resolution is going to be favorable as a defense lawyer, one tactic I have used is a motion to set a bond not even really trying to get a bond. Why would I do that? Well, it is because instead of waiting six weeks to get a felony VOP resolved, we can pull that timeframe forward by filing a motion to set bond, and instead of moving forward with that motion to set bond, use that earlier court date, we’ll say two weeks versus six weeks, to close that case out and get that person out of jail by settling it.

Now, this does not happen in every case. Every case is different but if you have questions about probation violations or community control cases, feel free to write us here at Florida Criminal Law TV, or give me a call at my law firm.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.