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Can my brother complete his felony probation time while jailed on new charges?
Anonymous5 views4 answers
My brother is on felony probation. He has paid his restitution and fees in full and completed all his community service hours. He was 2 week shy of completion when he was arrested on new charges. At this point, he has not been arraigned, nor has his probation officer filed the necessary paperwork to officially violate him. Does the clock keep ticking on his probation time even while he's jail, so his probation could be discharged despite the new charges? He does have a no bond hold because of the probation, but nothing has yet been filed by his PO.
He does not get credit for his probation time served on either end of his arrest.
This means that if he is found in willful and substantial violation of his probation he can be sentenced to the statutory max with only receiving credit for jail time - not time on probation served. It also means that while he sits in jail his probationary period is tolled and he is not ticking time off of his probationary sentence.
His PO will file something it it's not necessary for the court to hold him. If he is out felony bond and gets picked up then the felony bond is forfeited and he can be detained, period.
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").
My advise: Locate an experienced 813 area criminal defense lawyer, engage in a meaningful consultation and get yours brother some advise which is legally sound and has been custom tailored as possible to meet his specific reasonable needs in his unique cases (both probation and substantive)
There may or may not be a global resolution, or he may have viable defenses, I do not know. What I do know is that his odds at a favorable outcome will likely increase, exponentially, with the assistance of a skilled and experienced criminal defense lawyer who is efforting at moving Heaven and Earth on his behalf.
In the interim you might consider taking a look at my Legal Guide on surviving probation / CC in Florida as it contains a great deal of information on the subject and may prove to be helpful to you. For your convenience a link follows:
Michael A. Haber, Esq.'s Legal Guide on Probation in Florida: What it is and how to survive it? http://www.attorneyqna.com/legal-guides/ugc/probation-in-florida--what-it-is-and-how-to-survive-it
I hope that I have been helpful in answering your question.
As far as the analysis of his probation time, Mr. Haber's answer is directly on point to your direct question.
As to the new situation, IF his violation is technical and/or a misdemeanor charge arrest, Tampa has one Judge who handles this situation; Judge Daniel Perry.
If he was violated because of a new Felony Charge arrest, it will go back to the original Judge that he had on the case.
Either way, he should very much consult with his attorney as to what he wants to do.
If his case in in Judge Perry, the attorney can shorten up the time by setting a hearing on the matter. THe Judge has hearings Monday through Thursday each week upon a days notice.