‘Willfulness’ and How It Can Be the Key to Successfully Defending Against a Probation Violation Charge in Florida

In Florida, you can be in violation of the terms of your probation for many, many different reasons. Even something as simple as missing an appointment with your probation officer can lead to revocation of your probation and a sentence of years behind bars. While the state has the authority to find you in violation for a host of reasons, the burden during your probation hearing always falls on the prosecution to prove each element of the violation, not for you to prove that you didn’t violate. That means that, with the help of a skilled Tampa Bay probation violation lawyer, you have many ways to defeat the state’s case, whether it’s affirmatively disproving the violation or simply persuading the court that the state didn’t meet its burden of proof.

Take, for example, B.W., a Pasco County man charged with misdemeanor petit theft in 2019. He pled no contest and the court sentenced him to 12 months of probation. The court also ordered him to pay court costs and fines, and to perform 50 hours of community service.

By late September of that year, the state was back in court seeking a judgment that B.W. had violated his probation. The prosecution alleged that the man had stopped showing up for appointments with the probation department, had failed to pay the fines and court costs he owed and had failed to perform his community service.

At his violation hearing, the man “acknowledged that the terms and conditions of his probation had been explained to him and that he was aware that he had to make certain payments and report to his probation officer.” This was an important piece of evidence for the state. The law requires the state to prove that your violation was both willful and substantial and to do so by the “greater weight of the evidence.” If you were completely unaware of a particular condition of your probation, then a violation of that condition very possibly would be not willful.

The Accused’s Disability and Its Impact on His Lack of Willfulness

B.W. had his own strong evidence that his violation was not willful. He testified that he had a disability, that he had a paralyzed right arm, that he had no driver’s license, that he had no job, and that his fiancee paid for his household expenses. All that was important, as it related to the willfulness requirement. For nonpayment of fines and/or court costs to be a willful violation, the law requires proof that you had the financial ability to pay those sums. Here, not only did the state not prove B.W. did have the money, the man affirmatively offered evidence of his lack of money.

The appeals court determined that B.W.’s failure to report and failure to perform community service were not valid bases for revoking his probation. Again, it came down to that necessary element of willfulness. The state had evidence the man engaged in these violations, but not that he had done so willfully. Concerning B.W.’s failure to report, the state never gave the court proof that B.W. “had appointments scheduled on those dates and, if he did, that he had been notified of them.”

As for the community service requirement, the state’s evidence “did not even establish that there had been community service opportunities” for a person with a disability like B.W.’s. Without that proof, the violation could not be willful.

A charge that you’ve violated your probation is a very serious thing, so you should treat it that way. Defend yourself aggressively by getting the legal representation you need. The Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. are here to help. Our team includes former prosecutors who handled thousands of probation violation cases, so we know what the courts look for in these types of actions. Call us today at (727) 286-6141 to schedule your FREE initial consultation. The sooner you retain us, the sooner we can begin developing a winning defense strategy for you.

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