Violations of Probation

948.06. Violation of probation or community control; revocation;
modification; continuance; failure to pay restitution or cost of supervision

(1)(a) Whenever within the period of probation or community control there
are reasonable grounds to believe that a probationer or offender in
community control has violated his or her probation or community control
in a material respect, any law enforcement officer who is aware of the
probationary or community control status of the probationer or offender
in community control or any parole or probation supervisor may arrest or
request any county or municipal law enforcement officer to arrest such
probationer or offender without warrant wherever found and return him
or her to the court granting such probation or community control.

(b) Any committing trial court judge may issue a warrant, upon the facts
being made known to him or her by affidavit of one having knowledge of
such facts, for the arrest of the probationer or offender, returnable
forthwith before the court granting such probation or community control.
In lieu of issuing a warrant for arrest, the committing trial court judge
may issue a notice to appear if the probationer or offender in community
control has never been convicted of committing, and is not currently
alleged to have committed, a qualifying offense as defined in this section.

(c) Any parole or probation supervisor, any officer authorized to serve
criminal process, or any peace officer of this state is authorized to
serve and execute such warrant. Any parole or probation supervisor is
authorized to serve such notice to appear.

(d) Upon the filing of an affidavit alleging a violation of probation
or community control and following issuance of a warrant under s. 901.02,
a warrantless arrest under this section, or a notice to appear under this
section, the probationary period is tolled until the court enters a
ruling on the violation. Notwithstanding the tolling of probation,
the court shall retain jurisdiction over the offender for any violation
of the conditions of probation or community control that is alleged to
have occurred during the tolling period. The probation officer is
permitted to continue to supervise any offender who remains available
to the officer for supervision until the supervision expires pursuant
to the order of probation or community control or until the court
revokes or terminates the probation or community control, whichever
comes first.

(e) The chief judge of each judicial circuit may direct the department
to use a notification letter of a technical violation in appropriate
cases in lieu of a violation report, affidavit, and warrant when the
alleged violation is not a new felony or misdemeanor offense. Such
direction must be in writing and must specify the types of specific
violations which are to be reported by a notification letter of a
technical violation, any exceptions to those violations, and the
required process for submission. At the direction of the chief judge,
the department shall send the notification letter of a technical
violation to the court.

(f) The court may allow the department to file an affidavit,
notification letter, violation report, or other report under this
section by facsimile or electronic submission.

(2)(a) The court, upon the probationer or offender being brought
before it, shall advise him or her of such charge of violation and,
if such charge is admitted to be true, may forthwith revoke, modify,
or continue the probation or community control or place the
probationer into a community control program.

(b) If probation or community control is revoked, the court shall
adjudge the probationer or offender guilty of the offense charged
and proven or admitted, unless he or she has previously been adjudged
guilty, and impose any sentence which it might have originally
imposed before placing the probationer on probation or the offender
into community control.

(c) If such violation of probation or community control is not admitted
by the probationer or offender, the court may commit him or her or release
him or her with or without bail to await further hearing, or it may dismiss
the charge of probation or community control violation.

(d) If such charge is not at that time admitted by the probationer or
offender and if it is not dismissed, the court, as soon as may be
practicable, shall give the probationer or offender an opportunity to be
fully heard on his or her behalf in person or by counsel.

(e) After such hearing, the court may revoke, modify, or continue
the probation or community control or place the probationer into
community control. If such probation or community control is revoked,
the court shall adjudge the probationer or offender guilty of the offense
charged and proven or admitted, unless he or she has previously been
adjudged guilty, and impose any sentence which it might have originally
imposed before placing the probationer or offender on probation or
into community control.

(f) Notwithstanding s. 775.082, when a period of probation or community
control has been tolled, upon revocation or modification of the probation
or community control, the court may impose a sanction with a term that
when combined with the amount of supervision served and tolled, exceeds
the term permissible pursuant to s. 775.082 for a term up to the amount
of the tolled period of supervision.

(g) If the court dismisses an affidavit alleging a violation of
probation or community control, the offender's probation or community
control shall continue as previously imposed, and the offender
shall receive credit for all tolled time against his or her term
of probation or community control.

(h) 1. For each case in which the offender admits to committing a
violation or is found to have committed a violation, the department
shall provide the court with a recommendation as to disposition by
the court. The department shall provide the reasons for its recommendation
and include an evaluation of:

a. The appropriateness or inappropriateness of community facilities,
programs, or services for treating or supervising the offender;

b. The ability or inability of the department to provide an
adequate level of supervision of the offender in the community and
a statement of what constitutes an adequate level of supervision; and

c. The existence of treatment modalities that the offender could
use but that do not currently exist in the community.

2. The report must also include a summary of the offender's prior
supervision history, including the offender's prior participation
in treatment, educational, and vocational programs, and any other
actions by or circumstances concerning the offender which are relevant.

3. The court may specify whether the recommendation or report must
be oral or written and may waive the requirement for a report in an
individual case or a class of cases. This paragraph does not
prohibit the department from making any other report or recommendation
that is provided for by law or requested by the court.

(3) When the court imposes a subsequent term of supervision following
a revocation of probation or community control, it shall not provide
credit for time served while on probation or community control
toward any subsequent term of probation or community control.
However, the court may not impose a subsequent term of probation or
community control which, when combined with any amount of time
served on preceding terms of probation or community control for
offenses before the court for sentencing, would exceed the maximum
penalty allowable as provided by s. 775.082. No part of the time that
the defendant is on probation or in community control shall be considered
as any part of the time that he or she shall be sentenced to serve.

(4) Notwithstanding any other provision of this section, a felony
probationer or an offender in community control who is arrested for
violating his or her probation or community control in a material
respect may be taken before the court in the county or circuit in
which the probationer or offender was arrested. That court shall advise
him or her of the charge of a violation and, if such charge is admitted,
shall cause him or her to be brought before the court that granted
the probation or community control. If the violation is not admitted
by the probationer or offender, the court may commit him or her or
release him or her with or without bail to await further hearing.
However, if the probationer or offender is under supervision for any
criminal offense proscribed in chapter 794, s. 800.04(4), (5), (6),
s. 827.071, or s. 847.0145, or is a registered sexual predator or
a registered sexual offender, or is under supervision for a criminal
offense for which he or she would meet the registration criteria
in s. 775.21, s. 943.0435, or s. 944.607 but for the effective date
of those sections, the court must make a finding that the probationer
or offender is not a danger to the public prior to release with or
without bail. In determining the danger posed by the offender's or
probationer's release, the court may consider the nature and
circumstances of the violation and any new offenses charged; the
offender's or probationer's past and present conduct, including
convictions of crimes; any record of arrests without conviction for
crimes involving violence or sexual crimes; any other evidence of
allegations of unlawful sexual conduct or the use of violence by
the offender or probationer; the offender's or probationer's family
ties, length of residence in the community, employment history,
and mental condition; his or her history and conduct during the
probation or community control supervision from which the violation
arises and any other previous supervisions, including disciplinary
records of previous incarcerations; the likelihood that the offender
or probationer will engage again in a criminal course of conduct;
the weight of the evidence against the offender or probationer; and
any other facts the court considers relevant. The court, as soon as
is practicable, shall give the probationer or offender an opportunity
to be fully heard on his or her behalf in person or by counsel. After
the hearing, the court shall make findings of fact and forward the
findings to the court that granted the probation or community control
and to the probationer or offender or his or her attorney. The findings
of fact by the hearing court are binding on the court that granted the
probation or community control. Upon the probationer or offender being
brought before it, the court that granted the probation or community
control may revoke, modify, or continue the probation or community
control or may place the probationer into community control as provided
in this section. However, the probationer or offender shall not be
released and shall not be admitted to bail, but shall be brought
before the court that granted the probation or community control if
any violation of felony probation or community control other than a
failure to pay costs or fines or make restitution payments is alleged
to have been committed by:

(a) A violent felony offender of special concern, as defined in this
section;

(b) A person who is on felony probation or community control for any
offense committed on or after the effective date of this act and who
is arrested for a qualifying offense as defined in this section; or

(c) A person who is on felony probation or community control and has
previously been found by a court to be a habitual violent felony offender
as defined in s. 775.084(1)(b), a three-time violent felony offender as
defined in s. 775.084(1)(c), or a sexual predator under s. 775.21, and who
is arrested for committing a qualifying offense as defined in this section
on or after the effective date of this act.

(5) In any hearing in which the failure of a probationer or offender
in community control to pay restitution or the cost of supervision as
provided in s. 948.09, as directed, is established by the state, if the
probationer or offender asserts his or her inability to pay restitution or
the cost of supervision, it is incumbent upon the probationer or offender
to prove by clear and convincing evidence that he or she does not have the
present resources available to pay restitution or the cost of supervision
despite sufficient bona fide efforts legally to acquire the resources to
do so. If the probationer or offender cannot pay restitution or the cost of
supervision despite sufficient bona fide efforts, the court shall consider
alternate measures of punishment other than imprisonment. Only if alternate
measures are not adequate to meet the state's interests in punishment
and deterrence may the court imprison a probationer or offender in
community control who has demonstrated sufficient bona fide efforts to pay
restitution or the cost of supervision.

(6) Any parolee in a community control program who has allegedly violated
the terms and conditions of such placement is subject to the provisions of
ss. 947.22 and 947.23.

(7) Any provision of law to the contrary notwithstanding, whenever
probation, community control, or control release, including the
probationary, community control portion of a split sentence, is violated
and the probation or community control is revoked, the offender, by
reason of his or her misconduct, shall be deemed to have forfeited all
gain-time or commutation of time for good conduct, as provided by law,
earned up to the date of his or her release on probation, community control,
or control release. This subsection does not deprive the prisoner of his
or her right to gain-time or commutation of time for good conduct, as
provided by law, from the date on which the prisoner is returned to
prison. However, if a prisoner is sentenced to incarceration following
termination from a drug punishment program imposed as a condition of
probation, the sentence may include incarceration without the possibility
of gain-time or early release for the period of time remaining in his or
her treatment program placement term.

(8)(a) In addition to complying with the provisions of subsections
(1)-(7), this subsection provides further requirements regarding a
probationer or offender in community control who is a violent felony
offender of special concern. The provisions of this subsection shall
control over any conflicting provisions in subsections (1)-(7). For
purposes of this subsection, the term "convicted" means a determination
of guilt which is the result of a trial or the entry of a plea of
guilty or nolo contendere, regardless of whether adjudication is
withheld.

(b) For purposes of this section and ss. 903.0351, 948.064, and 921.0024,
the term "violent felony offender of special concern" means a person who
is on:

1. Felony probation or community control related to the commission
of a qualifying offense committed on or after the effective date of
this act;

2. Felony probation or community control for any offense committed
on or after the effective date of this act, and has previously been
convicted of a qualifying offense;

3. Felony probation or community control for any offense committed
on or after the effective date of this act, and is found to have
violated that probation or community control by committing a
qualifying offense;

4. Felony probation or community control and has previously been found
by a court to be a habitual violent felony offender as defined in
s. 775.084(1)(b) and has committed a qualifying offense on or after
the effective date of this act;

5. Felony probation or community control and has previously been found
by a court to be a three-time violent felony offender as defined in
s. 775.084(1)(c) and has committed a qualifying offense on or after
the effective date of this act; or

6. Felony probation or community control and has previously been
found by a court to be a sexual predator under s. 775.21 and has
committed a qualifying offense on or after the effective date of
this act.

(c) For purposes of this section, the term qualifying offense means
any of the following:

1. Kidnapping or attempted kidnapping under s. 787.01, false imprisonment
of a child under the age of 13 under s. 787.02(3), or luring or enticing a
child under s. 787.025(2)(b) or (c).

2. Murder or attempted murder under s. 782.04, attempted felony murder under
s. 782.051, or manslaughter under s. 782.07.

3. Aggravated battery or attempted aggravated battery under s. 784.045.

4. Sexual battery or attempted sexual battery under s. 794.011(2), (3),
(4), or (8)(b) or (c).

5. Lewd or lascivious battery or attempted lewd or lascivious battery
under s. 800.04(4), lewd or lascivious molestation under
s. 800.04(5)(b) or (c)2., lewd or lascivious conduct under
s. 800.04(6)(b), lewd or lascivious exhibition under s. 800.04(7)(b),
or lewd or lascivious exhibition on computer under s. 847.0135(5)(b).

6. Robbery or attempted robbery under s. 812.13, carjacking or attempted
carjacking under s. 812.133, or home invasion robbery or attempted home
invasion robbery under s. 812.135.

7. Lewd or lascivious offense upon or in the presence of an elderly or
disabled person or attempted lewd or lascivious offense upon or in the
presence of an elderly or disabled person under s. 825.1025.

8. Sexual performance by a child or attempted sexual performance by a
child under s. 827.071.

9. Computer pornography under s. 847.0135(2) or (3), transmission of
child pornography under s. 847.0137, or selling or buying of minors
under s. 847.0145.

10. Poisoning food or water under s. 859.01.

11. Abuse of a dead human body under s. 872.06.

12. Any burglary offense or attempted burglary offense that is either a
first degree felony or second degree felony under s. 810.02(2) or (3).

13. Arson or attempted arson under s. 806.01(1).

14. Aggravated assault under s. 784.021.

15. Aggravated stalking under s. 784.048(3), (4), (5), or (7).

16. Aircraft piracy under s. 860.16.

17. Unlawful throwing, placing, or discharging of a destructive device
or bomb under s. 790.161(2), (3), or (4).

18. Treason under s. 876.32.

19. Any offense committed in another jurisdiction which would be an
offense listed in this paragraph if that offense had been committed
in this state.

(d) In the case of an alleged violation of probation or community control
other than a failure to pay costs, fines, or restitution, the following
individuals shall remain in custody pending the resolution of the probation
or community control violation:

1. A violent felony offender of special concern, as defined in this section;

2. A person who is on felony probation or community control for any
offense committed on or after the effective date of this act and who
is arrested for a qualifying offense as defined in this section; or

3. A person who is on felony probation or community control and has
previously been found by a court to be a habitual violent felony offender
as defined in s. 775.084(1)(b), a three-time violent felony offender as
defined in s. 775.084(1)(c), or a sexual predator under s. 775.21, and
who is arrested for committing a qualifying offense as defined in this
section on or after the effective date of this act.

The court shall not dismiss the probation or community control
violation warrant pending against an offender enumerated in this
paragraph without holding a recorded violation-of-probation hearing
at which both the state and the offender are represented.

(e) If the court, after conducting the hearing required by paragraph (d),
determines that a violent felony offender of special concern has committed
a violation of probation or community control other than a failure to pay
costs, fines, or restitution, the court shall:

1. Make written findings as to whether or not the violent felony offender
of special concern poses a danger to the community. In determining the
danger to the community posed by the offender's release, the court shall
base its findings on one or more of the following:

a. The nature and circumstances of the violation and any new offenses
charged.

b. The offender's present conduct, including criminal convictions.

c. The offender's amenability to non incarcerative sanctions based on
his or her history and conduct during the probation or community control
supervision from which the violation hearing arises and any other
previous supervisions, including disciplinary records of previous
incarcerations.

d. The weight of the evidence against the offender.

e. Any other facts the court considers relevant.

2. Decide whether to revoke the probation or community control.

a. If the court has found that a violent felony offender of special
concern poses a danger to the community, the court shall revoke probation
and shall sentence the offender up to the statutory maximum, or longer
if permitted by law.

b. If the court has found that a violent felony offender of special
concern does not pose a danger to the community, the court may revoke,
modify, or continue the probation or community control or may place the
probationer into community control as provided in this section.

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