Michael A. Haber, P.A. Miami Criminal Lawyer
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Being on probation is an alternative to incarceration. It is a gift of sorts, albeit it is given by an Indian giver who can take it back at any time (the alternative being jail). It behooves you to remember that at all times while serving your probationary period. It may help to think of your time on probation as walking on a tightrope. Stray just a little to either side, lose your concentration or balance even for a moment and you fall. However, instead of landing on the ground you land in jail or prison.
violations of probation (VOP’s) are very different than substantive (new) cases. The terms and conditions of probation make it such that any material and willful violation can result in a no bond hold, a bench (not a jury) hearing (trial) with lax rules of evidence, admissible hearsay and a reduced burden of proof (a “preponderance of evidence” – or “more likely than not”).
There is no such thing as a debtor’s prison in the US or FL. That said, if you willfully and substantially fail to comply with the conditions of your probation – including making court ordered payments – then a violation can be filed and, if the court finds that you both willfully and substantially failed to comply then you can be incarcerated.
But 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.
All of this said, 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 your Judge will show some compassion and understanding to your situation.
At Michael A. Haber, PA “it’s all about reasonable doubt”!
Please note that no attorney-client relationship with either Michael A. Haber, PA or Michael A. Haber, Esq. exists as a result of your watching this webisode series. Further any and all information which is both contained in and may be construed from this webisode series is generic in nature and should only be considered as informational and not as actual legal advise in any specific case. Should you wish to seek actual legal advise then please feel free to contact Michael A. Haber, Esq. as follows:
Office Phone: 305-381-8686
Toll Free Phone: 1-888-SHARK-8-1
Cellular Phone / Text: 305-798-2220
E-Mail: [email protected] / [email protected]
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