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Probation Violation Must Be Willful and Substantial To Revoke Probation

Probation can be revoked upon a finding that a violation is willful and substantial. The State has burden to prove by the greater weight of the evidence that the probation violation is willful and substantial. This standard or burden of proof is also called preponderance or "more likely than not".

In a recent case from the Second District, a probationer who at his original sentencing was found to have several mental and emotional deficits, including mental retardation, a limited formal education, and found to be illiterate was accused of violating probation. The probationer was found to have violated his sex offender probation by leaving the county without permission and entering a park where children tend to gather and sentenced to fifty years incarceration in state prison.

At the hearing on the violation of probation, the probationer did not argue the facts of either allegation. Rather, he contended that his violations were not willful. He was cared for by his sister, who took him with her on an errand to visit a sick friend. She did not inform him where they were going, and he never left her sight.

The probationer testified that signs indicating that they were entering a State Park did not alert him that he was in violation of his probation because he cannot read. Although the GPS monitor reports demonstrated that he was in the wrong County for forty minutes, the probationer did not intentionally either leave the County or enter the State Park. The State presented no evidence contest the testimony that his violations were not willful. The Court found that the evidence supported the probationer's contention that he was not aware that he had left the County and that the State did not meet its burden. Probation was reinstated.

It amazes me that a person who is found to be illiterate and retarded can somehow still be sent to prison for ten years, then expected to follow the written terms of probation. Fortunately, the half century sentence was cut short by the appellate court. This case highlights the importance of presenting evidence and a defense at a violation of probation hearing. It also shows that notwithstanding the fact that a case should be won at trial, anything can and does happen once you litigate your case.

If you or a loved one is accused of violating probation, do not go it alone; click or call to hire a lawyer.

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