The following is Not Legal Advice.
Do Not Rely on This Information. It may not be current or accurate. For legal advice, consult an attorney.
Reflects Florida Statutes as of the 2025 session and reported decisions through 2025. Every statute cite links to the official text on Online Sunshine, which opens in a new window.
Florida law does contain a provision that strips a judge of discretion and requires reinstatement of probation after a violation. It is § 948.06(2)(f)1., Fla. Stat. But it is considerably narrower than “a first technical violation,” and most of the litigation under it turns on that gap.
The short answer
A judge must modify or continue probation — rather than revoke it and impose a prison sentence — only when all four of the statute’s conditions are satisfied. Failing any one of them returns full sentencing discretion to the court. Two conditions do most of the work: the violation must appear on a closed statutory list of “low-risk” violations, and it must be the probationer’s first found violation in the current term.
The four conditions — § 948.06(2)(f)1.
| Condition | |
|---|---|
| a. | The term of supervision is probation — not community control |
| b. | The probationer is not a violent felony offender of special concern (§ 948.06(8)(b)) |
| c. | The violation is a low-risk technical violation as defined in § 948.06(9)(b) |
| d. | The court has not previously found the probationer in violation on a filed affidavit during the current term of supervision |
The statute also carries two express escapes: it does not apply where the probationer waives it, and it does not apply in the situation described in subparagraph 3., below.
“Technical” is not the same as “low-risk technical”
This is the trap. § 948.06(1)(c) defines a technical violation broadly — any alleged violation of supervision that is not a new felony, misdemeanor, or criminal traffic offense. But condition (c) above does not use that definition. It borrows the narrower list in § 948.06(9)(b), and that list is exhaustive.
In Garmany v. State, No. 1D2024-1892 (Fla. 1st DCA July 30, 2025), the probationer lied to his probation officer to get permission to visit his girlfriend. That is unquestionably technical — no new crime. The First District affirmed a five-year prison sentence anyway, because lying to a probation officer is not on the (9)(b) list, and the statute contains no “including but not limited to” catch-all: “we lack the authority to add it to the list ourselves.”
The closed list — § 948.06(9)(b)
When committed by a probationer, a “low-risk violation” means any of the following:
| 1. | A positive drug or alcohol test result |
| 2. | Failure to report to the probation office |
| 3. | Failure to report a change in address or other required information |
| 4. | Failure to attend a required class, treatment or counseling session, or meeting |
| 5. | Failure to submit to a drug or alcohol test |
| 6. | A violation of curfew |
| 7. | Failure to meet a monthly quota on any required condition — restitution, court costs, community service hours |
| 8. | Leaving the county without permission |
| 9. | Failure to report a change in employment |
| 10. | Associating with a person engaged in criminal activity |
| 11. | Any other violation designated by administrative order of the circuit’s chief judge |
Item 11 matters in practice: the list is closed as to the statute, but a chief judge’s administrative order can add to it. That is circuit-specific and worth checking locally.
Note the qualifier “when committed by a probationer.” The same conduct by someone on community control is a moderate-risk violation under § 948.06(9)(c)1. — which is why condition (a) limits the mandatory provision to probation in the first place.
What the judge must actually do
“Modify or continue” is not the same as reinstating probation untouched. Two things follow:
| § 948.06(2)(f)2. | On modifying probation, the court may add up to 90 days in county jail as a special condition of probation. |
| § 948.06(2)(f)3. | If fewer than 90 days of supervision remain, the court may instead revoke probation and impose up to 90 days in county jail — notwithstanding the scoresheet under § 921.0024. |
| § 948.06(2)(f)4. | For a jail sentence under this paragraph, credit is limited to time served since the most recent arrest for the violation, and the total may not exceed the § 775.082 maximum. |
So a qualifying probationer is protected from a prison sentence, not from jail.
How the protection gets lost
More than one violation
Condition (c) speaks of “the violation” in the singular. The First District read that literally in Schmidt v. State, 310 So. 3d 135, 136–37 (Fla. 1st DCA 2020), holding the statute “applies only to probationers with a single violation of probation” and excludes those with more than one low-risk technical violation. The Third District followed Schmidt in Freeman v. State, No. 3D21-1149 (Fla. 3d DCA July 20, 2022).
Pleading to a new-law violation alongside the technical one
In Kaiser v. State, 322 So. 3d 696, 697 (Fla. 4th DCA 2021), a positive methamphetamine test generated the affidavit — squarely item 1 on the (9)(b) list. But Kaiser pled guilty to two violations, including possessing a drug not prescribed by a physician. The Fourth District held it was “the guilty plea to the two violations . . . that makes section 948.06(2)(f)1. unavailable to him,” and affirmed a 60-month prison sentence. The Sixth District followed Kaiser in Wells v. State, No. 6D2024-1179 (Fla. 6th DCA Oct. 10, 2025).
Judge Gross dissented in Kaiser, arguing that because “[e]very positive drug test result necessarily involves the possession of the ingested drug,” splitting one failed test into two violations “would always preclude a positive drug test from qualifying” — reading item 1 out of the statute. The point has not carried a majority, but it identifies the live tension in this area.
Conduct that is technical but unlisted
Garmany, above. Absconding, stay-away and no-contact order violations are also excluded from alternative sanctioning by § 948.06(9)(d).
“Current term of supervision” — a point in the probationer’s favor
Condition (d) asks only whether the court has previously found a violation during the current term. Garmany held that a prior violation from an earlier, already-revoked probationary term in the same case does not count. Garmany had been violated in 2023, resentenced to prison plus a new probation term, and violated again in 2024 — and the First District held the second violation was still his first in the current term, rejecting the State’s absurdity argument. The statute, the court said, “reflects a rational policy of giving probationers one slender break when adjusting to each current probationary term.”
He lost anyway, on condition (c). But the “current term” holding stands on its own.
Preserving the issue — this is where the claim is usually lost
Two First and Fifth District decisions from 2024 make the procedural point plainly, and they come out opposite ways for that reason alone.
| Radi v. State No. 5D2024-0256 (Fla. 5th DCA Oct. 8, 2024) | Claim raised in a rule 3.800(b)(2) motion, therefore preserved. The State did not dispute that all four conditions were met. Reversed and remanded for resentencing. |
| Harris v. State No. 1D2023-1788 (Fla. 1st DCA Aug. 21, 2024) | Judge Tanenbaum, concurring, wrote that the record showed a failure-to-report-a-change-of-address violation — item 3 on the list — and an “ostensibly unauthorized” five-year prison sentence. Affirmed anyway, because the issue was never raised: “there is nothing we can do in this direct appeal.” |
Under State v. Dortch, 317 So. 3d 1074, 1081–82 (Fla. 2021), even a fundamental sentencing error must first be raised by a rule 3.800(b) motion to be reviewable on direct appeal. A meritorious § 948.06(2)(f) claim that is not preserved that way is, for practical purposes, gone.
How the statute got here
The mandatory provision took effect October 1, 2019. As enacted, it said the court shall modify or continue probation when “any of the following applies” — which, read literally, would have qualified every probationer, since condition (a) is satisfied by the mere fact of being on probation.
The First and Fifth Districts applied the absurdity doctrine and read “any” as “all.” Owens v. State, 303 So. 3d 993, 997–98 (Fla. 1st DCA 2020); Kirk v. State, 303 So. 3d 604, 606 (Fla. 5th DCA 2020). Otherwise conditions (b) through (d) would be superfluous. The Legislature then ratified that reading, amending the text to “all of the following apply.” Ch. 2021-210, Laws of Fla. (HB 661), effective June 29, 2021. The current statute says “all.”
Older opinions quoting the “any” language are therefore quoting superseded text, not describing current law.
Before it reaches a judge — the alternative sanctioning program
Every judicial circuit must maintain an alternative sanctioning program under § 948.06(9). For a first or second low-risk violation, a probation officer may offer sanctions — up to 5 days in county jail, up to 50 additional community service hours, treatment, drug testing, curfew or house arrest up to 30 days — in lieu of filing an affidavit of violation at all. Participation is voluntary, requires an admission, and requires waiving counsel and a hearing.
Two consequences worth noting. Completing the program does not forfeit the mandatory provision — § 948.06(2)(f)1.d. expressly preserves eligibility. And participation can never convert a withheld adjudication into an adjudication of guilt. § 948.06(9)(e)9.b.