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What is an Evidentiary Hearing?

Technically, an evidentiary hearing occurs anytime a court hears and considers evidence to make a legal decision.  This can occur in many different contexts, including a motion for belated appeal, hearing on a 3.850 motion, etc.  The criminal law attorneys of Hackworth Law have handled a variety of evidentiary hearings.  An evidentiary hearing in criminal cases is most commonly referring to a hearing that occurs as part of a violation of probation case.  When someone charged with a violation of probation and does not resolve the case with an admission or dismissal of the violation of probation, the case will ultimately resolves with an evidentiary hearing.  An evidentiary hearing is the equivalent of a trial for a law violation.

During the evidentiary hearing, the State Attorney’s Office will call witnesses and present evidence attempting to prove the probationer violated their probation.  The Accused will also have the opportunity to call witnesses, present evidence and present argument.  Ultimately as we have discussed in other blog articles, there are two (2) types of violation of probations – technical and substantive violations.  An evidentiary hearing can occur on either a technical or substantive violation.  The State is forced to prove the violation by a preponderance of evidence.  This is a much, much lower burden than beyond and to the exclusion of every reasonable doubt – the standard for criminal cases.  Many times, a probationer will be found not guilty on the underlying the substantive criminal charge or the State will abandon the charges and the Court will find the probationer has violated the terms of their probation.  The Judge will have the ultimate decision; a probationer does not have the right to have a jury make the decision.  A probationer does have a right to counsel during the evidentiary hearing.  An attorney can greatly assist in forcing the State Attorney’s Office to properly carry their burden.

Generally, the majority of evidentiary hearings concern a probationer’s ability to pay the many, many costs associated with probation.  The most successful defenses at evidentiary hearings generally focus on a probationer’s ability to actually pay the costs of probation.   The State must prove that a probationer has willfully violated their probation.  For example, if a probationer legitimately has repeatedly sought employment and is truly unable to find employment, the Court cannot find they willfully violated their probation.  It is often very difficult for the State Attorney’s Office to prove a probationer has the ability to pay and failed to pay the costs of probation.

If you or someone you know has questions concerning a violation of probation and/or an upcoming evidentiary hearing, contact the Tampa criminal attorneys of Hackworth Law for a free case consultation.  We look forward to hearing from you and working with you.