Stephen G. Cobb - Florida Criminal Defense Lawyer

What Happens If I Reject A Plea Bargain In A VOP?


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.

Good evening and welcome back to Florida Criminal Law TV. My name is Stephen G. Cobb, attorney at law and I am your host of Florida Criminal Law TV and have been since the late 90s. We are doing a series of video shorts to answer people’s questions today. As you can see, it’s casual Friday and I am going to go through these questions one-by-one and answer some frequently asked questions. Since we have been on the air, we have been [inaudible – 0:00:32.9] diluted with user questions and I really appreciate it. Those of you who use Florida Criminal Law for information as well as our website, this is a very special episode for you. And so, our next question today is, “What happens after I reject a state plea offer in a VOP”? Well, as many of you know, VOP stands for Violation Of Probation. And when you are talking about a VOP, there is no right to a bond. This is important to remember.

Now, on misdemeanor cases, sometimes people will be able to get a bond; in felony cases quite often they cannot. But when it comes to rejecting a plea offer, that is a completely different animal whether or not someone is still in jail or on bond. What happens then is that the case is scheduled for an evidentiary hearing. Now, an evidentiary hearing is a lot like a jury trial but with some major differences. Difference no. 1, you do not have a right to a jury. As it is, the legal system in Florida for criminal justice is pretty unfairly rigged. You do not get 12 jurors; you only get 6. In a violation of probation, the judge not only takes the role of the jury finding facts but also makes rulings on the law.

Another key difference and this is critical, the burden of proof is lower. So, what this means is when you reject a plea offer in a VOP case, you do not get to try your case in front of a jury and the burden of proof is lower and most probation officers are smart enough not to just list one allegation of the violation. It is not uncommon for people to call me up and say, “I have got this violation of probation”, and I respond with, “Well, what do you think your violation allegations are”. And then, from there, they say, “Well, the only thing is going to be X”. Well, then they get a copy of the affidavit of violation and it is a scattergun approach where there are multiple things listed for violation of probation where the defendant thought there was only one thing. Well, the probation officer has been taking notes for months and they list everything they can possibly think of. So, when you go to that evidentiary hearing after rejecting a plea offer, you must win each and every count of violation of probation. Now, if you win, you get restored back to probation. If you lose, expect to go out the back door and you need to understand this if you do not like your plea offer because it contains the time and you lose an evidentiary hearing, expect to get sentenced to the max. Does this mean you are going to get sentenced to the maximum in every case? No, not at all. Your lawyer is going to be prepared to make arguments in favor of a less harsh sentence. However, the reality is if you turn down a plea offer in a VOP case, you need to be very careful about it, you need to have good communication with your legal team and I wish you the very best of luck because that is a very difficult situation to be in.

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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