Probation is an alternative to prison supervision sentence. Individuals who have served half of their probationary period should consider asking the court to early terminate their supervision sentence. This is true regardless as to whether or not the assigned probation officer is in agreement. The fact is that Judges are not bound to any recommendations of the Department of Corrections when it comes to granting a motion for Early Term. The court has absolute discretion in this regard and may exercise this right regardless of whether the Defendant has violated probation in the past, has failed to make payments or has failed to complete special conditions such as the completion of a treatment program.
When making a determination as to whether or not to grant a motion for early termination of probation, the court will seek to determine if utilizing the resources of the Department of Corrections is justified in supervising the defendant. Things that the court will consider are:
- The severity of the original offense for which the defendant was place on probation.
- The defendant’s criminal history.
- How well the defendant complied with the terms of probation.
- The recommendation of the prosecuting attorney.
- The recommendation of the defendant’s probation officer.
- Risk assessment evaluation (if any) by a license psychologist.
A history of complete compliance with the terms of probation is certainly preferable when it comes to seeking Early Termination of Probation, as it will significantly improve the chances of convincing the court to grant the motion. In fact, under Florida’s new law regarding Motions to Early Terminate Probation, the court may even be required to end your supervision sentence early.
A Motion to Early Terminate Probation Should Include:
- The date the defendant was placed on probation.
- The underlying offense for which the defendant was placed on probation.
- The special conditions of the defendant’s probation.
- An outline of the special conditions that have been completed by the defendant.
- An accounting of all fines, fees, costs and restitution amounts.
- Disclosure regarding violations of probation if any and explanation as to resolution.
- Disclosure of no prior violations of probation.
- Recommendation of Probation Officer.
- Position of Assistant State Attorney.
- Affidavit attesting to no new law violations.
- Results of favorable risk assessment evaluation.
Mandatory Early Termination of Probation
As of October 1, 2019, Florida Statute 948.04(4) requires that the court terminate probation, or convert the sentence to non-reporting probation when an appropriate motion is filed under the following circumstances:
- The Defendant has completed at least half of the probationary period.
- The Defendant has completed all of the special conditions of probation.
- The Defendant has not committed a technical violation of probation.
- The Defendant has not committed a substantive violation of probation.
- The Defendant’s original sentence did not preclude early termination of probation.
- The Defendant does not qualify as a violent felony offender.
While Florida Statute 948.04(4) technically requires the judge to early terminate probation provided that all of the above conditions are met, the reality is that the court may still deny the motion upon making a written finding that continued probation is necessary in order to protect the public.
Alternatives to Early Terminating Probation
Where the court does not grant a defendant’s motion to early terminate probation, their attorney may request the terms and conditions of probation be modified and less restrictive and taxing on their client. Alternatives to early terminating probation include:
- Converting the defendant’s probation to non reporting probation.
- Deleting special conditions of probation such as counseling, treatment or community service hours.
- Waiving the cost of supervision.
- Converting required restitution payments to a civil lien.
Early Termination of Community Control
Many individuals sentenced to Community Control have a a probation period tacked on to it. In these circumstances, the Defendant will want to consider filing a motion to terminate the House Arrest portion of there sentence its halfway point. This will allow for them to begin serving their probationary portion sooner. They may then re-petition the court to early terminate the additional probation of their sentence at its halfway point.
Automatic Termination of Probation
When resolving a case by way of a plea it is a good idea to negotiate for an Automatic Termination where appropriate. Cases involving the need for the Defendant to pay restitution to the victim are prime candidates for this being included in the case disposition. Situations involving Defendants in need of Drug and Alcohol treatment may also provide for Automatic Termination upon completion of required counseling. These cases will not require any form of motion or court hearing as supervision ends upon a specific condition being met.
Criminal Record Sealing
The Florida Department of Law Enforcement requires that any probationary sentence be completed before a certificate of eligibly to have a criminal record sealed may be applied for. Where the court terminates a probationers supervision early, they may immediately apply to have their criminal record sealed from public view if otherwise eligible.