Separating a primary charge from a VOP hearing.

Asked over 4 years ago - Daytona Beach, FL

I have a question regarding a VOP case, where the VOP contains both a technical violation, and a new law violation, which are related in tandem. The defendant is definitely pleading not guilty to the new law violation (and from what I gather, is indeed not guilty--so, let us just assume this is valid for the moment). My concern is that, even though there is a technical VOP involved (entering a bar--special condition), when requesting reinstatement of supervision, it would look much better to have the primary law violation already disposed of. So, how might a defendant argue to have the VOP hearing postponed?

Additional information

Thank you all for your replies.
As I understand the matter of technical violations, it is important that the State demonstrate the violation was done "willingly" (I really need a cite for that, and can't find it in the Statutes; perhaps in FAC?). In this case, the defendant (who is under 21, but over 18) did enter a bar with some friends, but mentions that the intention was to "order a meal and play pool" (although, unknown to them at the time, the bar served no meals--none of the group consumed alcohol, or attempted to do so).

So, to my mind, this suggests an "unwilling" or accidental violation of the technicality. The VOP hearing is this coming week, and it doesn't appear that the PD office wants to address this issue--they apparently want to enter a guilty plea. I'm not an attorney, but I'm leaning toward relaying these details to the court, as an outside observer, inclusive of positive character references of the defendant, via an Amicus Curiae brief--do you folks think this might be beneficial?

Attorney answers (4)

  1. Timothy England Moffitt

    Pro

    Contributor Level 15

    Answered . You have to ask the VOP judge for a continuance to allow the new charge to go to trial. the State will want to go forward with the VOP first because the burden of proof isn't as high as it is for the new charge and they will try to prove he committed the new crime in the VoP hearing without a jury and just the judge.

  2. David Richard Damore

    Pro

    Contributor Level 16

    Answered . Since I practice in Volusua county my answer is based on the general way vop's are handled here. Most of the judges prefer the new law case get resolved first. Your liability on the "technical violation depends on many factors such as your prior criminal record if any, the charge you were put on probation for, how long and how you have been in compliance with the terms of probation. I can't tell from your question if you are on felony or misdemeanor probation and if the new case is a felony or misdemeanor. These issues also need to be considered.
    Accepting your premise that the new charge will work out favorably to you, ask your attorney to review your options with you. Hopefully when all is considered you will know what is in your best interests. If continuing the vop is it your attorney should be able to get it done. Good luck.

  3. James Anthony May

    Contributor Level 8

    Answered . As a Tampa Bay area (Pinellas/Hillsborough) criminal defense attorney,the usual practice here is that the State would try to pursue the VOP issue first, because, as Tom stated, it is a much lower burden of proof for the state to prove and the defendant is not entitled to a jury during a VOP hearing. Unfortunately, even in cases where a defendant has been successful in being acquitted of the "new law charges" after a jury trial, he still could be found in violation during the VOP hearing based solely on the arrest (barring any suppression issues decided previously). In addition, although "technical violations" may sound better than "substantive or new law charge violations", they still have the same affect and may trigger the same consequences. The optimal situation is when there is a legitimate issue to litigate regarding the lawfulness of the arrest/stop of the new charge. If the trial judge does decide to postpone VOP and grants a suppression motion based on a bad stop/arrest then the Exclusionary Rule would apply to the VOP hearing, and no information previously suppressed should be entered against the defendant during the VOP hearing. But again, the order in which a judge hears a VOP or trial is solely his discretion.

    THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. Answering this question does not create an attorney-client relationship or otherwise require further consultation.

  4. Adam James Ellis

    Contributor Level 11

    Answered . It sounds like you're trying to play attorney based upon the very limited and general knowledge you have gained from this website. While I do not disagree with the advice offered by my colleagues, I really think the best thing you can do to help is to hire an attorney to handle this.

    I have never seen an amicus brief used in the context of a VOP, and I have handled quite a few VOPs. I appreciate the fact you're trying to help, but I'm just not sure how helpful your efforts will really be.

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