Articles 17 November 2009
When you are convicted of a committing a felony or misdemeanor crime, you may be sentenced to probation. Probation is generally a way to suspend custody, either jail or prison. Individuals placed on probation are free to return to their homes and communities instead of being incarcerated. Probation laws differ according to the type of probation ordered: (1) Formal Probation (supervised probation-you are assigned a probation officer and are required to meet regularly with your assigned officer) (2) Informal Probation (summary probation-simply obey all laws and no probation officer is assigned to monitor your case).
Probation becomes part of a criminal defendant’s sentence. If on probation, the judge may include other terms and conditions of probation to be followed and completed, including but not limited to; community service, counseling, drug testing, restitution, fines. Normally, probation for both formal and informal is a three years span. This, however, greatly depends on the defendant’s case and its facts or circumstances. It is, therefore, not so unique, that a judge will order formal probation up to five years or even more.
When probation is violated: Probation is a very serious matter and when you violate any or all of the terms of your probation, the penalties may be severe. As I already stated, jail or prison term is suspended during probation. The judge has inherent power to sentence you to the maximum term available in each charge that you pled to or was convicted of. The most common type of probation violations include: possession of illegal drugs or firearms, not adhering to probation rules (i.e. not reporting to probation, associating with known gang members or in an area where drug use is widely known, failure to appear at a court date, failure to pay fines in a timely manner, failure to comply to a restraining order).
Probation violation should not be taken lightly. A bench warrant for your arrest may follow after a violation. The penalties depend on several factors which include, but not limited to, the seriousness of the violation, prior violations, committing a new crime. Since, the court and the prosecutor find these types of behavior unacceptable, it is best to find a criminal defense attorney that can advise them of any mitigating circumstances that may prevent you from being sentenced to the maximum terms available.
I had a client that failed to appear at a mandatory court appearance coupled with fleeing the county for approximately three years. It was my job to explain to the judge why he should not be sentenced to the maximum confinement time available to the judge. It may already be very clear to you that probation violation hearings are highly discretionary. While the judge may order and the prosecutor may request severe penalties for the violation(s), some with the assistance of an effective attorney may allow you a second chance.
In my case, the judge reinstated my client to probation, same terms and conditions. However, it is the duty of the defense attorney to gather all mitigating facts which could assist the client. Simply “submitting” to the court on its discretion is fatal. Since the prosecutor’s standard of proof is only by “preponderance of the evidence” and not “beyond a reasonable doubt”, it is crucial that a hearing be prevented and negotiations by your criminal defense attorney with the prosecution and the judge succeeds.