In defending violations of probation, a confusing issue for clients is when does the probation period end if there has been a violation affidavit or report filed and a warrant issued, or a warrantless arrest is made, or a notice to appear on the VOP is created. Until recently, the advice by a VOP defense attorney would be that the probationary period is tolled as soon as that warrant is issued, arrest is made or notice is issued.
In a situation where there is no warrantless arrest or notice to appear both the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period. Recently, a point was made by an appellate court that has changed the once thought of rule that a VOP warrant tolls the period of probation. That Court in analyzing the Florida law that creates the great big pause button in the sky, noted that the statute referenced a specific statute under which the warrant had to be issued in order to toll, stop or pause the clock running on the probation term.
That other statute under which the warrant must be created specifically requires that a judge be satisfied that probable cause exists for the issuance of an arrest warrant for any crime committed. Therefore, the law requires that the warrant be for a crime. Therefore if the warrants issued were for violations of probation based on other technical not substantive violation such as the failure to make restitution payments, failing a drug test, missing a drug screen, failing to pay for a drug test, missing an appointment etc., then these are not crimes. Warrants for technical VOPs are therefore not issued under that specific section of Florida law and the probation is not tolled. (click for more on technical and substantive violations)
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