Probation & Community Control Solutions
The Florida Statute on Early Termination
Once you or your loved one has taken a plea of probation you should familiarize yourself with the Florida Statute on Early Termination. This will help when it is time to ask for the early termination of your probation. In this instance Florida Statute section 948.04 is the one you have to work under. Florida Statute section 948.04 states that if probationer has performed satisfactorily and has not been found in violation of any conditions of probation the department of corrections can recommend early termination of probation to the judge in your case. Even if the Department of Corrections does not want to recommend early termination the individual can still file the motion. There is no set time that a person has to wait before filing but it is recommended that the person wait until half of his term of probation is completed. It is important that during this time period the individual not get into any trouble or have any violations. If restitution is required it should all be paid before going before judge to ask for the early termination. I you do not have it paid the person will need to have an explanation of why it is not paid. I have been able to get the restitution converted to a civil judgment. It is not easy but it is possible.
Even if the judge in your particular case states that early termination will not be considered the person can still ask for it. This issue was addressed in Arriaga v. State 666 So2d 949 (1996). In that Florida case the court found that any such condition in which a judge said there can not be early termination the court found that the condition had to be stricken because a trial judge is not authorized to divest the department of corrections of its authority to recommend early termination of probation. Moreover a trial judge is not empowered to prevent the circuit court in the future from exercising its authority to discharge a probationer. It is very important to remember this because it will be brought up in some instances and if you think it is going to be a problem in the future you may be able to consider reusing judge if he made such a declaration at the time of plea. Even more important I find that many judges and prosecutors are not familiar with the law in this area and will inadvertently violate it at the expense of the defendant.
After reviewing the Florida Statute allowing early termination and the applicable case law that states that you have the right to ask for the early termination then you are ready to start your motion. Before I get started I will tell it is usually much more effective if you hire a criminal defense attorney to file the motion. Doing it by yourself can put you in a situation where you won’t have the answers causing motion to be
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The Plea
Once the charges are filed and the individual pleads not guilty then the state and the defense start discussing possible plea offers. The negotiations can continue through the discovery process and can go through the trial in many instances. It is important to understand that the different state attorneys in Florida have different policies as to how long an offer stays open. In many instances the state will give you an offer that will be withdrawn if any motions or depositions are taken. Another very common instance is prior to trial. Once the parties begin to pick a jury the offer will be open. There is no fixed rule as to when an offer is withdrawn but a general rule is that the longer the case goes the more chance the offer will be withdrawn.
The plea offer that will be made in a Florida criminal case depends on different factors. The first question that will be asked by the prosecution and the defense is what does the defendant score. In the state of Florida the state each prior crime the person commits is assigned a number. As part of the state responsibility they will prepare what is commonly referred to as a score sheet. If the points that a person accumulates reaches a certain number the will be require to serve time in a Florida prison. If the person score under _____ they score what is referred to as discretionary or any nonstate. This means that probation could be offered. Even if the defendant scores prison a non-state probationary sentence can be negotiated.
The sentence that could be negotiated could be house arrest, probation or a mixture of both. This is where it is very important that the persons attorney be familiar with criminal defense work. If the lawyer is not familiar with criminal defense work he will not know anything about possible early termination in the future. During negotiations I try not to bring it up if I do not know the prosecutor. Sometimes the prosecutors offer a plea with a stipulation that there will be no early termination. If the plea offer is silent as to early termination then the judge will more then likely hear the motion. If the plea offer says no early termination the court in many instances will still hear the motion. The best way that I have found to handle it is to tell the client right away that they may ask for early termination after completion of half the sentence. This gives the person a goal to strive for and motivation to stay out of trouble. So if you are sentenced to probation strive to get along with the officer and to stay out of trouble.
If the person is sentenced to house arrest I have found that the best thing to do is ask to have the house arrest be converted to probation then after completion of half of the probation you can file the motion for early termination timing is very important.
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The Charges
We will start this paragraph by explaining what some terms are that you will have to familiarize yourself with. When an individual is arrested in a sex related case he will more then likely go to jail. After the person is arrested they will either post bond or remain in jail. This is until the prosecution decides whether they will file the charges that the person is arrested for. This sounds kind of strange to someone not working in the system or having much contact with it. I will try to explain it. When the person is arrested the arrest/police report is given to the individual that are in charge of reading this report with other evidence and then decide whether prosecution of that county has enough evidence to file charges. If the prosecution in the state of Florida decides to file charges they will preparing a document called an information. The information sets out all the charges that the accused will face in it. In other types of case the state files what is called an Indictment. Indictments and information’s will be discussed at length in later sections but all you need to know now is that these two documents is where the state outlines what the accused is charged with. Once the state files information or an indictment then comes the first court date.
The first court date is called the arraignment. In the arraignment is brought before the judge and the charges are read to them. The judge then asked the individual how does he plead. This is asking you to state whether you say you are guilty, not guilty or no contest. There are other more option but to keep this simple we will stick to these three. The first two are self explanatory. The third is no contest. This means that the accused is not saying they are guilty nor are they saying that they are not guilty and they are allowing the court to go forward. This is usually plead as part of the person taking a negotiated deal. The accused pleads no contest in exchange for the deal offered. The judge then decide whether they will accept the deal because the judge must accept the deal. In a case where individual does not have representation the arraignment is conducted in open court. Sometimes when the accused is defended by the public defenders office the arraignment is sometime conducted in open court but when the individual hires a private attorney the attorney files a written plea of not guilt along with their notice of appearance. Under the Florida rules of Criminal Procedure if a written plea of not guilty is filed the arraignment is waived. In this case the accused will be able to skip the arraignment because his lawyer put a written plea of not guilty.
There are many scenarios where different thing could happen at an arraignment but the scenarios that we have just gone over is what usually happens. It is the start of the case and now there is no doubt whether charges will be filed.
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How The Motion Works
Before you even consider asking for early termination make sure all the terms of your probation are met. If they are not all met then be ready to explain why. Do not try to reargue your case. There is no quicker way to get the motion denied. The one thing that sounds funny but isn’t is to make sure this motion is written. Many people will call the judge to get a date to get on his calendar to have the motion heard. The judges chamber may give you a date but if it is not written the judge does not have chance to hear your argument before hearing and will hear the argument for the first time at your hearing. This increases the chance of the motion not going well. Even if you negotiated early term in the plea agreement it will not end until you put the motion and have it heard. Putting the motion in written form only helps you and there is not reason not to take advantage of this. I’ve been practicing law for over twenty years and no one will be able to convince me that shooting from the hip is ever better than being fully prepared.
When you prepare the written motion you want to keep it as simple as possible. You are first going to explain the terms of your probation. You then want to point out that you are past halfway point assuming you are. You make sure you write how your probation is going. Whether there have been any violation. You are required to get your probation officers position on it so write in you motion there position after you get it from probation. You then ask for the early termination. After this is done the motion is filed. Make sure you find out if you will have to efile. If you are a lawyer you are required to efile. Pro se litigant sometimes don’t have to. After this is done mare sure you get a copy to the judge and state. Find out from the state what there position will be. This will tell you how to prepare your argument. Once all this is done you call the judges chamber and get a court date for the motion. I will let you in on a secret the shorter the motion the quicker you will probably get a court date.
So now you have you motion filed you have your court date and are now waiting to be heard. If you are doing it yourself I suggest you go to the courtroom and watch the judge. What he likes and what he doesn’t like. This will help to prepare argument by showing you what not to do or what not to say. This in many instances could be just as important as knowing what to say. Practice what you will say when you are asked about any problem areas. Remember be honest and sincere. Judge hears a lot of people trying to lie to them so they can see right through it.
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Day of the Hearing
The calls have been made the motion has been written and filed it is time to go before the judge and request the early termination of your probation based on your motion. One of the things I like to do is to do a practice run before going before the judge. The difference I do not like doing the practice run at the office but right outside the courtroom. There is a reason for this. Any experienced lawyer will tell you that his client will be a lot more relaxed at his office then at the courthouse. At the courthouse you could feel the tension everywhere. This is why it’s important to practice in this atmosphere. It simulate the tension of having to perform in front of a judge. If you practice enough the client will even feel comfortable testifying in court.
The first thing I do when I walk into the courtroom is to approach the prosecutors about any possible plea offers to resolve the case. You never want to let this opportunity be wasted. The prosecutor may tell you that he does not object and you could tell the judge that. The judge is not likely to deny the motion if both sides agree. Even if the prosecutor does not agree they will tell you why and you could address the objection. The defendant should be dressed in a way that shows respect to the court. They should not talk unless spoken to. When they want to say something they should say it to the lawyer quietly. There should be a plan between lawyer and client to do this. The lawyer should have anticipated all objections.
I always like to ask how the judge feels about early terminations. Most judges want curtained thing done before considering early termination like having all restitution paid. If this is your case that is the first thing you want t to tell judge. This will put him lean towards granting right away. If the victim is there make sure you acknowledge them and it usually good if the defendant once again apologizes to the victim. When you do this the victim in many cases will not be as aggressive towards the defendant. Remember restitution is a very important issue. If you have not completely paid the restitution make sure you have a very good reason why it has not been paid. If you have a lot of restitution and can’t pay make sure you or your lawyer set any ability to pay hearing prior to the end of probation. The reason for this is most probation officers have instructions to violate the defendant before they finish probation. By setting up the hearing you preempt the prosecutor. The judge will decide what to do before the prosecutor has a chance to ask that you be violated. This has kept many of my clients from being violated.
Early Termination of Probation
Criminal law is an area of law that covers cases that deal with the possibility of going to jail and losing their freedom. This section goes on to explain how an individual gets charged with a criminal offense and the possible consequences from probation to jail time both county and state time. This is considered the most dangerous area of law because the individuals freedom is on the line. It is because of this that every decision made has to be thought out and give careful consideration before they are acted on. If you or someone close to you is charged with a criminal offense please go to the criminal defense page and read the anatomy of a criminal case. After reading this you will have a better idea on how the system works. After that give us a call and we can talk about the particular facts in you case. Let out experience and knowledge work for you.