Stephen G. Cobb - Florida Criminal Defense Lawyer

Violation Of House Arrest By Electronic Monitor And Probation Violations In Misdemeanor

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.

Now, we are going to talk about a different type of misdemeanor proceeding now that I did not cover in the last video and that is because the procedure is different, faster and unique. And this is what is known as the Violation of Probation or House Arrest Docket. In misdemeanor court, you do not have sentences, which will have community control. That is a form of house arrest that is done in felony court only. In some counties and not all, you have house arrest through electronic monitor. More commonly, you have probation without that. And so, with probation procedure, the first thing that happens is the probation officer files an affidavit of violation. This is a sworn document where they list out every single ground they believe that constitutes the violation of probation. Now, this is where you can get ambushed. How do I mean you can get ambushed?

Well, you get ambushed because I will ask somebody why do you think you are being violated and they will say, “I am being violated for this one thing”. Well, then, we get an affidavit of violation, court costs are unpaid, behind on costs of supervision, there is a laundry list of several things. And a person might say, “But I still have time to complete all these things”. Trust me, if a probation officer can list additional things, they are going to list everything they possibly can because the more they list the easier it is for the state to get a conviction if it goes to a contested hearing, which we will come to in a few minutes.

So, to begin with, you have an affidavit of violation, you have what is known as a violation report form where the probation officer goes into more detail and background about the history of supervision, what has been paid, what is owed etc. And that is a separate document from an affidavit of violation. Now, from there, what is going to happen is it goes to the judge for an arrest warrant. If the judge finds there are legal grounds, and usually they do, an arrest warrant is then signed. Now, the arrest warrant may have a bond amount but because there is not a right to a bond in a violation of probation quite often and in some counties, always, you never have a bond on a violation of probation.

Now, if that is the case, it might be appropriate to do a motion to set bond. And the time to do a motion to set bond may or may not be at a proceeding we have talked about in another video and that is first appearance. When someone is taken into custody in a misdemeanor case and they do not have a bond, what will happen is they will have a first appearance. When the judge is looking at the paperwork and deciding probable cause, “Well, that is easy, probable cause exists” because a judge has signed a warrant. This is where it gets tricky. If the judge who signed the warrant, the trial judge on your original case is the judge at first appearance, then the judge will entertain a bond motion. Does that mean the judge will grant it? No. It means the judge might grant it.

Now, if the judge is not the trial judge of the case, 99% of the time the answer is going to be, “No, I cannot hear a bond motion; this is not my case”. And so, in that case, we have to do a motion to set bond if that is the appropriate thing to do and it is not in every case at a subsequent hearing. However, in some counties, judges in misdemeanor divisions will set bonds for each other. Now, it is unusual, it is not very common, we do have a county where that happens in the first judicial circuit and others exist across the other 19 circuits in Florida, so it is critically important if you believe you are going to be violated or if you have a family member who has a warrant active and you are calling on their behalf, notify us and hire counsel quickly because if we can get them a bond, by all means, we want to be at first appearance and get them a bond. If we cannot get them a bond and a bond is appropriate, then we want to go ahead and file that pleading and get the early as possible court date. So, that is a little bit about misdemeanor VOP procedure.

Now, you still have motion hearings that are possible for bond, for evidence matters, dismissal, suppression, all kinds of things but the burden of proof in a violation of probation is the greater way to the evidence. And you can mentally think of this as 51% as opposed to beyond and to the exclusion of every reasonable doubt. You can think of that as 97/98/99%. So, there is a massive difference in the burden of proof. Procedurally, after first appearance, there is something known as violation of probation arraignment.

Now, basically, what that means for defendant who is in jail is they get carted off to the courthouse. And if you are in a place like Lake County, basically walking across the overwalk that is secure while being chained up and going to court, that is bad but it is not nearly as bad as being awakened at the crack of early in Crestview, for example, and driven tens of miles to the courthouse in Fort Walton Beach. I mean that is a pretty good height to be chained to a bus. And if you are in De Funiac Springs, that is where your court is and someone is being held in the jail there. That is not quite as long a drive but it is still a long enough drive and uncomfortable.

So, sometimes we will waive arraignment in a misdemeanor VOP case because nothing useful is going to happen, we are trying to work out a settlement, we are investigating defenses whatever, but for whatever reason, we do not need our client tremendously inconvenience while they are in jail, or if they are out on bond to go to a pointless court appearance where nothing useful is going to occur. Generally speaking, if you have court, we want something useful to happen so that you are not inconvenienced in any way, shape, form or fashion because we understand courts are stressful and we want to minimize that as much as possible.

Next, if you have a violation of probation and arraignment has been waived or not, then you could also have a violation of probation evidentiary hearing scheduled. What is the VOPE? Violation Of Probation Evidentiary. That is like a trial. There are some key differences. One, the burden of proof is lower; two, a judge instead of a jury makes the determination; three, if there are six grounds in the affidavit of violation, they do not have to prove all six, they just have to prove one. So, you have a lower burden of proof, sometimes a scattergun affidavit of violation and sometimes these are difficult cases to settle. So, we will keep in contact with you but those are the proceedings and I want to tell you a little trick that we have to close this segment out.

Let’s say for example that somebody has a case and it is scheduled for arraignment in six weeks. We have a deal cut within a few days of representation with the prosecutor that does not involve jail time, yet there we are with a client who is stuck in jail. Well, there are a couple of things we can do since it is a misdemeanor case. 1), We can use a written sentencing agreement to where the client does not have to be present because it is a misdemeanor case. Now, certain I’s have to be dotted, T’s have to be crossed. And to put it bluntly, it has to be done perfectly correct. We have a lot of experience doing that so we know how to do it. And that avoids court entirely, we can get the order to the judge as fast as possible. And a lot of that is out of our control. But for that which is in our control, if you are sitting in jail or your loved one is sitting in jail, which is more likely the case, if you are watching this, then we want to get that person out as quick as possible if their case settles.

2), another way to do it, let’s say that we have a capped agreement where the state wants 30, 60, 90 days in jail, we want none, well the state agrees to ask for no more than that. That is known as a cap. Well, in that case, we do a motion to set bond fully knowing that all it is going to do is that court date that is six weeks out, it is going to bring it forward by several weeks, we then use the bond hearing to withdraw the bond motion, we make a motion where violation of probation is admitted, a plea colloquy ensues where the judge will ask a defendant questions. And then, if the plea is knowingly and voluntarily entered, then we submit argument in a particular way.

Now, if we are successful, this prevents many weeks’ elapsing between the time the person enters the admission and sentencing because if we’re successful, we do not want to get this great outcome but have to wait many, many weeks while someone sitting in jail that they do not need to sit in if we are going to be successful at hearing. So, that way, we can speed the process up. So, we have a number of little tricks and procedures that really are not trick so much as they are things you learn from experience because a lawyer with experience is never at the mercy of a lawyer with nothing more than a hypothesis or an empty theory. So, we use that experience to move court dates around for you.

Finally, there could be a full-blown sentencing hearing as a result of a violation of probation. We might have to enter an admission on one day and do a sentencing hearing later on down the road. Those things do happen in violation of probation cases. Finally, there may be other things as well that are specific and unique to your case. And if that is the case in your case, we will let you know.

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.

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Stephen G. Cobb, Esq.

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