In Florida (and elsewhere), probation is used as an alternative tool for punishing criminal offenders.  Many people believe that they understand probation and how it works, but much of the information people glean about probation is based on having consumed popular media about the criminal justice system.

Have you been charged with a crime in Florida?

Criminal litigation can lead to a great deal of anxiety, but even if you are found guilty of having committed a crime, your defense attorney may be able to convince the court to sentence you to probation as an alternative to imprisonment.  Going through criminal litigation without an attorney is highly discouraged — even in the early stages of the process — so make sure to connect to an experienced Florida criminal defense attorney for guidance.

There’s a lot of misinformation out there.  If you’ve been charged with a crime, you’re likely to be confused as to what probation really entails.  Understanding probation doesn’t have to be complicated, so let’s begin with the basics.

What is Probation, Exactly?

If you’re going to understand how probation works, you’ll have to understand the philosophical underpinnings of probation first.  Put simply: probation is an alternative punishment, and a privilege.

Probation was developed to serve as a method for possibly rehabilitating criminal offenders who pose a less serious threat to others.  Instead of incarcerating such offenders, Florida courts may choose to sentence them to probation — essentially, the offender will be allowed to continue living a relatively “normal” life in society, though they will be subjected to a number of limitations in the form of probationary conditions.

For example, a criminal offender who has been sentenced to probation may be allowed to live at home, work, socialize, and do everything they would have normally done prior to their conviction, but may have to submit to regular drug tests and check-in with their probation officer to ensure that they are satisfying the conditions of their probation.

Remember, Florida courts are not required to sentence you to probation.  By default, a court may follow the guidelines to the degree necessary and may sentence you to a period of incarceration.

Courts May Exercise Discretion When Establishing Probationary Conditions

In Florida, courts may exercise discretion in sentencing the criminal offender to probation.  As such, courts may vary quite a bit on what they deem acceptable conditions to impose on the offender during the term of probation.  Importantly, Florida law prevents courts from imposing probationary conditions that are unreasonable — a probationary condition may be imposed so long as it is not vague, arbitrary, or malicious in any way.

Suppose, for example, that you are found criminally liable for an assault that you committed during the daytime.  The court sentences you to probation but imposes a strange and rather unexpected probationary condition: a curfew at 9PM.  The curfew condition does not relate to the circumstances of your criminal offense — it is arbitrary, and therefore unreasonable.

If a probationary condition is unreasonable, you can challenge its imposition and have it changed.

What Happens When You Violate Probation?

Violations of probation fit into two categories: technical and substantive.

A technical violation occurs when the offender fails to adhere to one of the probationary conditions.  For example, if there is a curfew condition, and the offender is discovered having violated their curfew, then the court may schedule a hearing and revoke probation, thus exposing you to standard punishment (i.e., imprisonment).

A substantive violation occurs when the offender commits another crime during their probation term.

Now, the court may choose to penalize probation violations in a number of different ways, depending on the circumstances.

Revocation

If the court can show that your violation — whether technical or substantive — was deliberate and substantial, then they may schedule a revocation hearing.  If your probation is revoked, then you could be imprisoned (assuming that the original punishment would have been incarceration).

Imposition of New or Changed Conditions

The court may instead choose to impose new probationary conditions (or may alter existing conditions).  This can be extremely restrictive.  It is important to note, however, that these conditions must still meet the “reasonability” requirement for all probationary conditions.

Modifying Probation

When circumstances change, you may be entitled to request a modification of various probationary conditions that have become unreasonable.  The court will schedule a hearing and you will have an opportunity to present evidence of the material change in your circumstances, and how this has created an unreasonable hardship for you.

For example, imagine that you are forced to check-in with your probation officer every week, in the early afternoon.  You are newly employed, however, and your boss requires that you work during the weekdays (daytime).  You have no opportunity to leave work and check-in with your probation officer.  You could request a modification that allows you to check-in on weekends check-in with the probation officer during the evening.