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Does the state have to disclose who they are calling as a witness in a Violation of Probation hearing? Does the defense?

Tampa, FL |

Basically, does defense have the right to know who the state is calling as a witness, or if they are calling anyone at all?

I have a misd. VOP hearing coming up based on an arrest where the charges were dropped almost immediately. I do not know why the hearing is still taking place but I received a notice to appear and the hearing date is set. Sorry to be redundant but does the prosecutor have to provide a "discovery" and name who is going to testify and what evidence they are presenting? Or is it a surprise?

I would need to bring witnesses as well so would I (or defense council) be required to provide a list of my witnesses or character references and evidence as well? Thank you so much in advance.

Attorney Answers 6

Posted

Good question. All criminal discovery is controlled exclusively by the procedures set forth at PC 1054 and following. These procedures set forth the discovery obligations of each party before a trial. A hearing on a VOP is not a trial and I do not see any provision of the Penal Code that would require it. On a personal note I have defended many VOP hearings and I was never given discovery prior to the hearing beyond the police reports.

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Posted

Memo the CA lawyer who answered this question - which specifically targeted FL rules and procedure: I don't usually get into other attorney's business but, with all due rspect to your vast experience, you should stick to CA law and not presume to know FL law, unless in fact you do know FL law. Citing CA penal cose rules in regard to a FL law question is not only legally (and ethically) inappropriate but is also extremely bad form.

As to the probationee, the answer to your question is YES (and no). In FL the State is obligated to provide "discovery' (puruant to Rule 3,220 of the FL Rules of Criminal Procedure), including the names of any witness that it intends to call, in both substantive and probation violation matters; however, this obligation is only triggered if you first invoke your right to participate in the discovery process, and, once you invoke discovery then the obligation becomes reciprocal (i.e. you must also share with the State those witnesses and that evidence which you plan to seek to introduce).

Unfortunately, even a "dropped" arrest can form the basis of a VOP, but in order to find you in violation the allegations need to "shock the conscience" of the Court and be material, substantial and willful. Unless you wish to be sand-bagged (proverbially of course) when you appear for your VOP-H I would strongly suggest that you consult with a criminal defense practicioner (there are many fine criminal defense lawyers in the Tampa / St. Pete area) who can assist you in both understanding and navigating your way through the process.

While Avvo (and similar sites) are wonderful sources of generic information it is critical to bear in mind that each case, and each Defendant, is /are different, and as every case is also a fluid experience, there is only so much that any lawyer can tell you about your case on-line; in short there is no substitute for an in person face-to-face consultation. Although I practice primarily in Miami-Dade please feel free to contact my office for a referral or two, or you can search the Florida Association of Criminal Defense Lawyers by locality (please see http://www.facdl.org/index.php/component/civicrm/?view=Profiles&layout=search&Itemid=169 ).

Best of luck!

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2 comments

John M. Kaman

John M. Kaman

Posted

Mr. Haber is correct although I must say there was no malicious intent here. For some reason I assumed the question came from CA; I don't know why because that is not what the questioner stated. My mistake. Had I realized it was an out of my state question I never would have cited CA law.

Michael Adam Haber

Michael Adam Haber

Posted

Now that is good form!!!!!

Posted

Mr. Haber provided an accurate answer. The answer on provision of discovery including a witness names depends on whether your attorney filed a request for discovery. If he or she did you should receive the information. Since the standard of proof in Florida for a violation of probation is much less for a VOP than that for an original criminal charge, you can still be convicted for VOP even though the original charge was dismissed.

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Posted

I agree with my colleagues. Ultimately, you should have some idea of the witnesses that will be called against you based solely on the allegations in the CRA. Regardless of whether the case has been dropped, the State can still go forward on the VOP. Ultimately, the standard at a trial and a VOP hearing are significantly different.

My firm handles these matters in Tampa and offers free case consultations. Good luck.

This answer does not, nor is it intended to, create an attorney-client relationship or constitute attorney advertising. Rather, it is offered solely for informational purposes. The facts of each case are different and unique, it is critical to consult with qualified counsel with whom information can be shared and assessed under attorney-client privilege, so that competent and quality advice can be obtained on which you can make informed decisions

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Posted

You have a right, but you don't have to exercise it. Sometimes (although rarely) trial by ambush is in your best interest. Depends largely on the facts.

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Posted

It doesn't come up often because the witness in a vop hearing is almost always the probation officer, but the law supports the position that if you demand discovery, you've got a right to it. Procedurally, however, you might run into a time crunch because the court may feel like you should have asked for the discovery before the hearing was set. Your lawyer should know this. If you don't have a lawyer, you're on very thin ice. A question about "character references" worry me because character evidence is very rarely allowed in these proceedings so I have an idea you have no lawyer. Bad decision. Even more difficult is a gray area like probation hearings.

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