Q: I am on felony probation with early termination after 1 year, I filed my early term papers. Do i have to request a hearing to? I am on felony probation with early term after 1 year and all condition met. I paid my restitution in full with in the first month. I was told my court cost where not a condition and where going to be civil, however that’s not how the order came into the probation office. Also, it was ordered by the judge I could transfer to another state in original order. I am in one state with my youngest son due to special needs school and my other son is 4 states away so i need to travel . I am 10 months into my sentence and haven’t been able to pay court cost, I am disabled barely making ends meet. I don’t pay a monthly fee for supervision it was waived. So I filed for early term with the request court cost go to civil. How long does it take to get a hearing? Do I need to request hearing?
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Michael HaberLearn more. ” href=”http://www.avvo.com/legal-answers/i-am-on-felony-probation-with-early-termination-af-2408092.html#!” rel=”nofollow” style=”color: #006699; text-decoration: none; transition: all 0.3s ease;”>PRO
Criminal Defense Attorney – Miami, FL
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Answered . 1) The Judge is not likely to rule without a pending motion so scheduling a hearing is a good idea.
2) The written Court Order controls over whatever you were told or understood to be the case.
3)
As to interstate transfer of probation, the approval process is more complicated. Not only do you need your Judge’s permission but you also must meet the criteria for transfer pursuant to the interstate compact on adult offender probation. The interstate compact is an agreement that all 50 States subscribe to and which governs the transfer of probation from State to State. You can access their website at the following URL: http://www.interstatecompact.org/Thus, even if the FL Judge grants you permission to relocate the “target State” still has to accept your transfer of probation. If they do they you are golden but if they don’t then your request for transfer will be denied and you are stuck. In this event your options are as follows: 1) You can try to petition the target State (in your case __) for a waiver vis-a-vis a __ lawyer; 2) You can petition your FL Judge to early terminate (ET) your probation; 3) You can petition your FL Judge to convert you to “administrative” (i.e. “write-in” or “call-in” non-supervisory) probation; or 4) To stay in FL. You have no other options as I see it.
4)
As to costs: In order to incarcerate you for failure to pay the court must first hold a hearing and afford you due process, including a right to present evidence that your failure to make your Court Ordered payments was not willful – that is to say that you could not (not that you chose not to) make the payments. “Willfulness” requires some degree of choice. If you have money and choose to spend it on things other than your Court Ordered obligations then you can be punished; but if you truly do not, and if the State cannot prove that you made such a choice, then you also cannot be jailed for your non-unwillful fauilure to pay.
The Court has other alternatives to jailing you; namely it can choose to extend your probation (assuming that there remains statutorily permissible time for such an extension), convert your balance to either a criminal order (in the case of restitution) or community service hours (in the case of monies other than restitution) or s/he may be able to waive the costs / fees / fines and simply terminate your probation (successfully or unsuccessfully, as s/he sees fit). However, and again, if you truly could not pay then your violation should not be considered “willful”, and without that necessary component you cannot be violated and incarcerated.
If you know that you will not be able to make your payments then you will be best advised NOT to wait for your PO to violate you and instead you should consider causing the matter to be brought before Judge beforehand – thereby hopefully impressing your Judge by your preemptive demonstration of a respectable level of acceptance of responsibility.
If you truly cannot make your payments then gather accurate records of your finances (income and expenses) and don’to sweat it (unless, of course, you are willfully not paying). If you have a lawyer then you should discuss this with her / him and have a preemptive motion filed; if not then you should consider asking your PO if s/he will assist you to get the matter in front of the Judge now, as opposed to waiting for an imminent violation. Either way so long as you are not spending your money on superfluous things and you are truly strapped for cash then I am confident that the good Judges of the _________ will show some compassion and understanding to your situation.
5)
Please take a look at both my Blogpost and YouTube Webisode on Probation Modification in FL (links are attached below for your convenience) as they contain additional information on the subject which may prove helpful to you:Haber PA Blogpost on Probation Modification in FL: http://habercriminallaw.blogspot.com/2015/07/michael-haber-pa-webisode-on-probation.html
Haber PA YouTube Webisode on Probation Modification in FL: https://youtu.be/E8Mu8mxC04w
6) Calendar your Motion.
I hope that I have been helpful to you.
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