How Can My Probation Officer Violate Me For Not Doing Everything If I Still Have 2 Months Left?

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

My name is Stephen G. Cobb. I have been practicing criminal defense law since July the 2nd of 1990, certified as the specialist in the field since 2002, and I am your host of Florida Criminal Law TV. As you can see, it is casual Friday, meaning no court and I get to answer your questions about criminal law.

Now, this next question is really pertinent because just yesterday, I was asked this question not once but twice and this is what the question is. I am on felony probation; can my probation officer violate me for not having everything done if I still have a little under two months before probation ends? Well, this is a felony probation question. Someone was placed on probation in felony court. Now, I am also going to cover misdemeanor because I got that question in a misdemeanor case yesterday. But in the felony context, you have to look at the written plea agreement. Back in the day when I started practicing criminal defense law, in my hometown Pensacola, Florida, I went to the violation of probation hearings and took a look at all these cases and they were terrible. And I tried to enter admissions of violation with no major harm to my client and this judge pounded every single one of my clients with massive amounts of jail time and nothing I said worked. And I thought to myself after court, “This is never happening again”. So, what I did was I hit the books. I mean this is a pre-internet era, so I hit the books with the vengeance, I began filing oral and written motions to strike the counts of the affidavit of violation and dismissed the counts for violation. And after being in court for many, many hours litigating every single case, we started to get some traction and this particular judge started sentencing more reasonably.

Now, what is critical with this question is in the felony context, the written plea agreements were modified after I started getting cases kicked for violating the statute of limitations. So, now, if you read a felony plea agreement in just about any part of Florida, what you are going to find is it is going to have language that says this. All terms and conditions must be completed 60 days prior to termination of probation. So, what happens is people will go through probation and sometimes they will get it in their head, “I am just going to wait until I save up enough money and pay all my court costs just before it ends. Well, I have got plenty of time on getting this community service or whatever it is done”, and the next thing you know, they find out they have got a warrant, or worse, they go to visit their probation officer and they are arrested. And then they are going, “But I still have almost two months”. It is too late.

Now, what we have done in some cases, and what I am going to be doing in a couple of cases I recently picked up, is my clients had done all of the requirements but the information did not get where it needed to go. So, in fact, these people had actually complied with the probation, yet due to the fact that they were being supervised in another location, documents did not go where they were supposed to that they found themselves in violation, both of them.

Now, in the misdemeanor case, it is a little different because misdemeanor plea forms do not contain language that says what most probation officers do is that 30 days before the end of probation, they are going to go through a probationer’s file. Anytime they have been 5 minutes late for an appointment, anytime they are $5 short on costs of supervision, or if they are waiting to finish that community service work the next Saturday, probation officer is not going to wait because they are afraid of a motion strike and dismiss for a violation of the timeframe. They have to have what is called the Revocation Process set in motion prior to the expiration of probation. And in the old days when I first started practicing, I would find case after case after case where they would give the person till the last minute, they would prepare the affidavit of violation on the last day, they would run by their supervisor the next day, then they would forward it to the judge, the judge would issue an arrest warrant with or without a bond, usually back then with no bond. And then, I get this file and I am looking at this file and I am going, “Wait a minute, that is late. There is no jurisdiction”, and so we would kill that probation violation case.

So, your best practice – and this is what I tell everybody. If I am representing someone, whether it is with a team or without a full proper co-counsel team, I very rarely do that but occasionally I do. I always caution people and I would give you this caution, get everything done early. Do not wait until the last minute. If you have got 3 years of felony probation, get everything done in 2 because here is another wrinkle. In most counties, if you are given say 3 years of probation, some will allow termination at the 50% mark; others will want two-thirds. But in either case, most will grant a motion to terminate early, most judges, at the two-thirds point if you have completed everything. Now, this will save you 40 to $60 in a cost of supervision depending upon what part of Florida you are in. In some parts of Florida, your monthly probation fee for the costs and the luxury of being on probation, the supervision fee is $40 a month plus a 4% surcharge. In other counties, it is $50 a month plus a 4% surcharge, which makes it $52. So, basically it will save you money, it will save you risk, get everything done on probation early and then you want to be talking to your legal team about a motion for early termination of probation instead of asking a question, “How can they violate me when I have still got two months to go”.

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