Violation of Probation Law & Defense
Probation is a period of supervision instead of an actual jail or prison sentence. A probation sentence after a criminal conviction for a misdemeanor crime r is called informal probation or summary probation. A probation sentence after a conviction for a felony crime is called formal probation.
Informal probation means that the defendant is periodically monitored by the court to ensure that the defendant is complying with the terms of his or her misdemeanor probation. Formal probation means the defendant is supervised by a probation officer to ensure that the defendant is complying with the terms of his or her felony probation.
To be placed on probation means that a jail or prison sentence is suspended, and will remain suspended, so long as the defendant completes a list of terms and conditions of his or her probation. If the defendant fails to complete or comply with the terms of his or her probation the court may find that the defendant violated his or her probation and order the defendant to serve the jail or prison sentence that was previously suspended, or the court may choose another option, such as add more terms of probation.
Typical probation terms include: violate no law, pay fines, serve a jail sentence, abide by criminal protective orders, attend classes (such as DUI, child abuse, AA, domestic violence, etc.), register with local authorities (such as a sex offender, drug offender, arsonist, gang member, etc.), pay restitution, and more.
Note: A term of probation can include an order to serve a jail sentence; however, a term of probation that includes a jail sentence may usually, but not always, be served on work release or house arrest (electronic monitoring).
Probation Violation: A violation of probation occurs when the defendant does not comply with the terms of his or her probation. There are two types of probation violations: Technical and Substantive:
A technical violation of probation means that the defendant failed to fulfill a term of probation as promised, but the violation is not otherwise considered a crime. Technical violations of probation include: failure to pay a fine, failure to pay restitution, failure to enroll, attend, or complete a require class (DUI, anger management, etc.), and more.
A substantive violation of probation means that the defendant is accused of committing a new criminal offense while on probation. Substantive violations of probation are usually treated more harshly by prosecutors and judges than technical violations of probation. In addition, with substantive violations of probation, the defendant is facing the new criminal charges.
Vickers Hearing: After the defendant violates the terms of his or her probation, whether by technical or substantive violation, the district attorney will usually request that a warrant be issued for the defendant's arrest. If the defendant is aware that she has a warrant for her arrest then she may request a hearing with the court to deal with the warrant and probation violation issues. A defendant has a right to request a hearing , called a Vickers Hearing, where the defendant may present a defense to the allegation that the defendant violated her probation
Note: Not all violations of probation issues will progress to a Vickers Hearing. Some violation of probation allegations can be handled with the defendant's admission of the violation followed by a reinstatement of the original terms and conditions of probation. This is more common when the probation violation is technical in nature and involves a first offense violation (especially for misdemeanor probation violation cases and cases where the defendant immediately request a court hearing to deal with the matter.
If the judge finds that the defendant violated his or her probation, the judge will sentence the defendant. A sentence for a violation of probation can range from reinstatement of the original terms and conditions (without any new punishment), or the judge may sentence the defendant up to the maximum punishment allowed under the law for underlying crime that lead to the defendant's probation in the first place.
If the judge sentences the defendant to any additional jail time for a violation of probation the defendant is entitled to credit for any time that he or she already served for the crime that lead to the probation sentence.
The duration of probation is set by law. For example, child abuse cases require at a minimum of at least four years of probation by law (assuming the defendant is granted probation as opposed to sentenced to jail or prison). With exceptions (especially for sex crimes) Misdemeanor probation generally lasts for one to three years. Felony Probation generally lasts for three to five years.
Modifying Probation: The defendant may request a modification of probation terms if he or she cannot comply with those terms. It is better to request a modification of the probation terms as opposed to simply violating the terms of probation. For example, if the defendant can not pay a required fine because he or she lost a job, then the defendant may request a court hearing in an effort to convince the judge that his or her fine should be reduced, or modified to meet the defendant's new financial situation. Common modification of probation terms include: request to travel out of state, request to modify a payment plan, request to modify a class schedule (DUI, anger management, etc.), request to terminate probation early, and more.
If you have been charged with violating probation, or PC 1203, contact our criminal defense attorneys today for a free consultation. Our successful and experienced criminal attorneys have handled hundreds of probation violation cases. Our attorneys are available seven days a week to answer your questions. Call today!
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