Both state and federal courts consider several key factors in determining the form and length of a sentence to be imposed on a convicted defendant. The primary considerations are the nature of the crime, the defendant’s role in the commission of the crime, their prior criminal record, and their overall character, education, employment record, and family involvement.
Sometimes, the crime for which the defendant was convicted requires a particular mandatory sentence. However, in virtually all cases, the defendant will be sentenced to some period of supervised release or “probation,” either following a period of incarceration or in lieu of such imprisonment.
What Probation Terms Can a White-Collar Defendant Expect?
First, what crimes are generally considered to be “white-collar” crimes?
A white-collar crime gets its name from the traditional view that people who commit financial crimes, insurance fraud, tax evasion, perjury, and other ‘non-violent” offenses wear a white collar to work instead of “blue collar.” The distinction seems out of place in contemporary society. Still, the term can be understood to refer to crimes that do not involve violence, bodily injury to victims, destruction of property, or drugs.
Given the absence of violence and other features mentioned above, you might think that a white-collar crime is less serious; you would be wrong.
Both state and federal government prosecutors fight hard to convict defendants charged with stealing their victims’ life savings through fraud, identity thieves, insider traders, and corrupt public officials.
So, is there a difference between the terms of probation imposed on defendants convicted of white-collar crimes and the conditions by which others must abide on probation?
Standard White-Collar Probation Terms
Under federal law, probation may be imposed instead of incarceration for only a certain class of offenses. In other cases, a federal judge “may” substitute probation for incarceration only after making specific findings on the record that the judge believes support the “less than jail” sentence. And the judge can also impose “special” probation terms on a convicted defendant to address the needs of the victim or the special circumstances of the defendant.
However, standard probation terms include the following:
- The defendant must report to probation where they will reside within a specific period following the imposition of sentence, in federal court no more than 72 hours after sentencing.
- Thereafter, the probationer must report to probation as ordered by the probation officer.
- The probationer cannot leave the jurisdiction without the permission of the probation officer.
- They must not lie to their probation officer (P.O.).
- They must notify the probation officer of their residence and the identities of those with whom they live. Any change must be reported before the change occurs or, in urgent circumstances, immediately after the change.
- Probation officers may visit their home or their workplace without notice and remove any item in plain view that the probationer is not authorized to possess.
- The probationer must maintain full-time employment or continue to seek employment unless waived by their P.O. Any change in employment must be reported prior to the change occurring or immediately thereafter if early notice is not practicable.
- The probationer must not associate with anyone known to be involved in criminal activity. No association with a convicted felon is permitted without the P.O.’s permission.
- Any arrest or police contact must be reported to the P.O.
- No federal or Florida state probationer may possess a firearm, including both misdemeanor and felony probationers.
Special Condition of Probations for White Collar Defendants
Beyond the standard probationary requirements, both federal and Florida state court judges may impose other conditions appropriate to the fact of the crime and the circumstances of the victim.
- Community Service – A probationer is often ordered to perform a specific number of hours of community service, that is, voluntary, unpaid, work for a not-for-profit organization or public agency. The work is both a form of punishment and a form of restitution to the community for the offense the probationer committed.
- Restitution – Especially in white-collar crimes, financial losses by a victim are very common. One of the most important considerations in imposing probation in lieu of incarceration is often the court’s plan to have the probationer repay the victim with funds earned during their employment while on probation.
- Substance Use Abstinence, Counseling, and Treatment – If alcohol or drugs played a role in the commission of the crime, courts typically insist that probationers refrain from all alcohol or unprescribed medication and illegal drugs as a condition of probation. This probation term is accompanied by court-ordered urine or other chemical tests to ensure the rule is followed. While an occasional “dirty” test sample may not result in a probation violation proceeding, any repeated or pattern of such results will trigger a violation hearing. It may result in the probationer being sentenced to jail or prison.
Standard of Proof in a Probation Violation Hearing – Federal and Florida State Probation
The standard of proof at a probation violation hearing is not the same as at a criminal trial. The probation violation needs only to be proven by “the greater weight of the evidence” (Florida) or by “the preponderance of the evidence” (Federal). Both of these phrases refer to the same quantity of proof.
The prosecution must establish that the probationer more likely than not violated their probation.
Why is the standard of proof lower than the trial “beyond a reasonable doubt” standard? Because a person on probation has already been adjudicated guilty or culpable of the offense. The court could have imposed a jail or prison sentence but imposed probation instead. Probation is a conditional term during which incarceration is withheld as long as the rules are obeyed.
Read More > Can a Probation Officer Monitor Social Media?
White Collar Crime Defense
With the help of a skilled lawyer, individuals charged with white-collar crimes can navigate the legal system and work towards achieving a positive outcome. At Stechschulte Nell Law, we understand the gravity of these charges and provide our clients with aggressive defense strategies that protect their rights and interests.
If you or someone you know is facing white-collar crime charges, don’t hesitate to contact us today and schedule a consultation at 813-280-1244. Your future could depend on it.
