It is true that probation is a better alternative to incarceration. Probation will keep offenders in the community as they work to correct their behavior. It is also seen as a more cost-effective solution for the state compared to keeping offenders in jail or prison. However, probation comes with terms and conditions that the accused must adhere to, failure to follow these terms may lead to facing consequences of probation violation. Some terms of probation are a bit strict and so, may be difficult to keep. If you are accused of violating the terms of your probation, the Law Offices of Jonathan Franklin can help you to understand your options for a better hearing outcome. We serve clients throughout Beverly Hills and the greater Los Angeles County.
Understanding Probation Terms and Violations
For anyone that is sentenced for an offense in California, the presiding judge will have total discretion in determining how they will sentence the offender. The state laws give judges the authority to sentence an offender up to a maximum sentence for the offense they have been convicted for. Depending on the severity of the offense, the judge may pass a felony or misdemeanor sentence and could also grant probation in place of giving you a prison or jail sentence.
Probation gives the offender a chance to complete his/her sentence while still living in the society under the conditional release. Instead of keeping the offender in jail for several months, or sometimes years, probation in California is seen as an excellent way of keeping the accused as productive as he/she has been, but still able to complete his/her sentence for the crime they committed. Once the offender completes their probation successfully, they are allowed to go back to the court and have their guilty plea terminated or their conviction by the judge set aside in most of their cases.
There are mainly two types of probations in California:
Formal probation: Also known as felony probation, it is the kind of probation that requires an offender to report to and stay under the supervision of a probation officer. In addition to this, the offender is required to pay restitution to their victims and sometimes to serve a part of their sentence in jail.
Informal probation: Also known as a summary or misdemeanor probation, this is is the kind of probation that is served by an offender without being supervised by the probation officer. This kind of probation comes with conditions such as the need for the offender to attend counseling sessions, perform community work, and pay restitution to the victims.
Since it is the judge who decides the kinds of sentences to give depending on the magnitude of your offense, it is upon him or her to decide the time length that your probation will take. Sometimes probation can take up to three years and other times it can go for up to 5 years. However, there are instances when an offender is allowed probation for the full time that their prison sentence could have taken for the crime they were convicted for.
This is a crime that is committed when a person breaks the conditions or terms provided with their probation. The violation is punishable by law and in California, the kind of punishment for this offense is determined by several factors including the type and severity of that violation. If for instance, it is not your first time to violate a probation term or condition, you may be punished more severely than a first-time offender. The judge will also consider if there are more conditions that could worsen or lessen the severity of your situation. Violating probation is, therefore, a very serious matter and could attract steep penalties including extended probation, heavy fines or even jail time.
How Can a Person Violate Their probation?
Probation violations occur when a person on probation avoids, ignores, refuses or breaks the terms and conditions of their probation at any given time in the course of their probation period. There are many ways through which probation could be violated. They include:
- Failing to appear in court as scheduled by the judge on the required date and/or time
- Failing to report to the probation officer that is assigned to you on the agreed time and place
- Failing to pay the mandatory fines or restitution to the victims as per the court order
- Going to places or visiting people that you were not to go or see within your probation period
- Traveling out of the state without notifying your probation officer for permission
- Using, processing or selling illegal drugs
- Committing other offenses and crimes against your probation terms
- Getting yourself arrested for a different offense, whether criminal or not.
- Failing to take part in or complete a counseling treatment or a community service that was ordered by the court
What Happens When a Probation is Violated?
Every offender that is placed under probation is expected by the law to agree and abide by the terms and conditions provided on their probation for the length of time the probation will take. These terms and conditions are clearly read to the probationer before they are released, as well as some possible consequences of violation. Here is a step-by-step guide on what happens when one violates their probation:
The Offender will get a Warning or an Appeal to Show Up in Court
There isn’t any rule that is set to determine exactly what should be done when an offender violates their probation. The probation officers are usually at discretion to decide what they should do when it happens. In most cases, an officer will issue out a warning to the probationer, cautioning him/her of the consequences of failing to honor their end of the bargain. Other times, the officer will summon the probationer in court for a violation hearing. To decide what to do, the officer will consider several things including the nature of the terms or conditions that have been violated and whether or not it is the probationer's first violation among other things. If the violation is severe, the officer will summon you to court and some kind of formal penalty will be announced, for instance, jail time.
The Violation is Determined
Determination of the violation will be done in a hearing, with the sentencing judge presiding over it. The judge will first listen to the offender's case to establish whether or not they truly went against the terms and conditions in their probation. The prosecutor will be required to show proof that the violation took place by providing evidence or by proving the 50% chance that the violation actually happened. To pronounce the sentence, the judge will consider several factors including the type and gravity of the claimed violation, mitigating or aggravating circumstances, and any prior violations if there are any.
The Sentence will be Pronounced
If an offender is found liable for violating his/her probation, a sentence will be pronounced soon after the hearing. At this point, the court can decide to:
- Restore your probation but extend the probation term
- Restore the probation but impose more terms and conditions
- Terminate the probation and give you the original sentence for the crime you committed
- Sentence you to more time in jail
- Terminate your probation and give you the maximum sentence to the original crime
- Revoke the probation and have you serve the remaining time in a prison or jail
To pronounce the sentence, several factors will be considered including the manner and nature of the violation and whether or not you are a first-time violator among other factors
Note that every case is different and so, consequences for the violation may be different from one person to the other. Whether yours is formal or informal probation, a peace officer can arrest you anywhere, without any arrest warrant when you are assumed to have violated your probation. The peace officer, in this case, could be a parole or probation officer. After the arrest, you will be taken back to the court where the probation was granted, for the violation hearing.
In a case where the probation is reinstated, the judge may require you to serve a jail term of up to one year as a condition for the reinstatement.
First-Time Probation Violations
Even for a first-time offender, probation violation is a serious matter in California, carrying severe penalties. The judge will, however, consider the nature of the violation and how severe it was before pronouncing a sentence. A minor violation will, for instance, be penalized by compulsory community service or similar consequences, but if it is a more serious violation, you may end up losing your probation and getting the full jail term. Here are a few possible penalties for a first-time probation violator in the state:
Compulsory community service: if mandatory community work was not included in your probation, the judge could impose it after the violation. However, note that this is the lightest penalty one can get from such a serious crime as this.
Compulsory treatment/counseling: this will depend on the nature of the probation. If for instance you are accused of using, processing or selling drugs, the court may order you to undergo treatment as part of your probation.
You could also get extended probation or additional terms and conditions on your probation
Your Legal Rights in a Violation Hearing
A probation violation charge can be very serious and so, it is important for a person to know their legal rights to minimize any additional penalties and other consequences that could come as a result. In California, some of the important rights an offender must know include:
- The right to receive a written notice stating the violations you have been alleged to commit
- The right to be heard by a fair judge
- The right to legal representation by an attorney
- The right to be allowed to provide evidence and if applicable, witnesses in support of your case, or those who will refute any evidence levied against you.
To understand your legal rights better, you need to work closely with an experienced attorney who understands the law better. Your attorney will also ensure that all your rights are respected for a much smoother process. An experienced attorney will also know the options you have in such a case to be able to advise you on the best option to take.
Possible Defenses for Probation Violation
There are many reasons a person would have for not honoring the terms and conditions of their probation. Before you lose your probation or get an even steeper sentence for the violation, it is good to come up with the best argument possible, which may keep you out of jail. Some of the possible defense strategies your attorney can use include:
- You might have had a good reason for not meeting up with your probation officer on the agreed time/date. If for instance, you got a medical emergency which required your immediate action, the court may be sympathetic enough to only give you a warning.
- You could also have violated your probation in good faith. If maybe you did not have enough money to pay all the fines required by the court, the judge may understand your reason. However, you must prove to the court that what you paid was all you could raise under the circumstances.
- Your good behavior could sell you out as a good person despite the violation. If you are the kind of person who has exhibited very good behavior throughout your probation except for just one violation, the judge may only issue out a warning.
Contact a Probation Violation Attorney Near Me
A violation of probation terms is a serious matter that could significantly affect your future. What you need is an aggressive representation that could preserve your freedom. That is what we offer at the Law Offices of Jonathan Franklin, we will fight your case with every resource we have available to us until your case is resolved. Call us at 310-273-9600 and let us help ensure that your rights are protected and that your defense is properly planned.