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The Florida Bar

Technical Violation

A technical violation of probation occurs when a defendant fails to comply with either the general or special conditions of their supervision in any manor other than by committing a new criminal offense. A new law violation is referred to as “Substantive Violation of Probation” and often results in tougher penalties than a mere technical violation. Substantive violations are generally considered to be a greater threat to an accused’s liberty, as they must also answer to the new criminal charges that serve as the basis for that violation as well as the violation itself. Technical violations of probation, on the other hand, are by nature considered to be less severe generally resulting in less exposure to a risk of incarceration in the Florida prison system.

Standard and Special Conditions of Probation

Probation cases include both standard conditions and special conditions that the accused must abide by. General conditions are applicable to all probation cases while special conditions are tailored to the specific defendant and are often relative to their offense. The requirement that a probationer report to a probation officer at least once a month is applied generally to all probation cases (with the exception of administrative probation). The completion of a drug treatment program, on the other hand, would be imposed as a special condition as they are not “standard” in all probation cases.

Conditions of probation (both special and standard) require that the offender refrain from doing things while others require the supervised individual to affirmatively act. For example, a probationer will be required to refrain from using illegal drugs while also being required to submit to drug testing. Using a controlled substance without a prescription as well as failing to submit to urinalysis are both separate and distinct violations for which a defendant can be charged. It should be noted that where a probationer is in possession of illegal narcotics in addition to having used them, he or she would likely be arrested and charged with possession of a controlled substance. This arrest would trigger a warrant for a substantive violation of probation as it involves a new law violation. If the Defendant also tested positive for using the controlled substance, this technical violation would be added to the violation warrant as an additional count. Consequently, the violation would be considered to include both substantive and technical violations.

Reinstatement of Probation

Technical violations of probation are more likely to be considered for reinstatement by the presiding judge than substantive new law violations and may also qualify for an alternative sanctions program. Certain jurisdictions throughout the State of Florida have administrative orders establishing Alternative Sentencing Programs for Felony Offenders.

Alternative Sentencing for Probation Violations

The Florida Constitution grants wide latitude of authority and power to the chief judges in each judicial circuit to do everything necessary to promote the prompt and efficient administration of justice. This granting of authority has led to the enacting of administrative orders in most Florida Counties that allow for leniency with respect to technical violations of probation. Technical violations of probation, as opposed to substantive violations of probation, do not involve new law violations and are generally considered to be a less serious offense.

Alternative Sentencing Eligibility

To qualify for an Alternative Sentence under a Florida jurisdiction’s administrative order, the probationer:

  • Must have significant ties to the community by way of employment and/or relatives.
  • Must be charged with a technical violation, which means that there was no new law violation.
  • Must be accused of committing a technical violation that is not considered serious in nature and must be considered to be a “Low or Moderate Risk Violation”.
  • Must not have been on probation for an underlying offense that is considered to be a “Dangerous Crime”.
  • Must not have a “Lengthy Criminal History”.
  • Must not have an open case in “Repeat Offender Court”.
  • Must not have case in “Domestic Violence Court”.
Justification for Alternative Sentencing Programs

Data driven legislation shows that incarcerating certain non-violent felony offenders is neither economically sound, nor productive. To the contrary, research suggests that supervised individuals are less likely to reoffend where violating probationers are held accountable through swift and appropriate sanctioning.

Administrative options that facilitate the processing of technical violations of probation reduce the taxation of Florida’s criminal justice system by:

  • Reducing the amount of court violation of probation hearings.
  • Reducing the workload of assistant state attorney’s charged with prosecuting technical violations of probation.
  • Reducing law enforcement resources required to serve violation warrants for certain technical violations.
  • Reducing the jail population for offenders awaiting pending violation of probation hearings.
  • Offering the offender an alternative to a violation hearing in court which allows for the retention of employment, school or treatment.
  • Allowing the offender to take immediate responsibility for their actions.
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