Probation Violation Hearings

Often times, defendants who are placed on probation believe they have received a slap on the wrist. They think they have dodged a bullet by avoiding jail time. This is a dangerous mindset, as being on probation carries tremendous risk.

There are several different types of probation.

Straight Probation means that a person is under the supervision of the probation department and if he or she violates the terms of the probation, the judge can issue any sentence allowed by law. For example, assault and battery is punishable by two and a half years in the House of Correction. Suppose a defendant pleads guilty (or is found guilty after a trial) to assault and battery and is placed on straight probation for two years. For those two years, the defendant will likely be required to report monthly to a probation officer and pay a $65 per month supervision fee. The defendant might also be ordered to complete an educational class (such as the certified batterer’s program or an anger management course). A further condition of probation is that the defendant will not be arrested or charged with a new crime. If the defendant violates any of the probationary conditions, the judge can impose a sentence for any period of time from one day in jail up to two and a half years in jail. The judge also has the discretion to reprobate the defendant (acknowledge the violation but place the defendant back on probation with the same terms and end date), or to add additional conditions of probation (such as random drug testing). The severity of the punishment will depend on the seriousness of the violation.

  • Straight probation is available in district court and in superior court. Because the sentences in superior court are typically more severe than those in district court, a defendant in superior court has considerably more exposure. For example, a defendant who is on probation in superior court for armed robbery can be sentenced to up to life in prison following a probation violation.
  • A continuance without a finding (CWOF) is a type of straight probation. A CWOF is a disposition that is available to defendants who are charged with minor offenses and who have limited criminal records. A CWOF means that a defendant admits he or she is guilty of the offense, but instead of a guilty finding entering, the case is continued without any finding for a period of time. During the continuance, the defendant is on straight probation with normal probationary conditions. If the defendant successfully completes the probationary period, the case will be dismissed and a guilty finding will never enter. If, on the other hand, the defendant violates probation, the CWOF can be vacated, a guilty finding can enter, and the defendant can be sentenced to the maximum penalty allowed by the statute.

A suspended jail sentence means that a person is on probation and under the supervision of the probation department. For example, a defendant might be sentenced to one year in the House of Correction, but the sentence will be suspended for two years. During that two year period, the defendant will be subject to the normal probationary conditions. If the defendant violates probation, the judge can do one of three things: (1) acknowledge the violation but reprobate with the same terms and end date; (2) impose additional conditions of probation; or (3) impose the jail sentence. Unlike with straight probation, the length of the jail sentence is predetermined. The defendant who has a one-year suspended jail sentence must serve one year in jail – no more and no less.

  • A suspended sentence is available only in district court. In superior court, all probation is straight probation.

A split jail sentence means that the defendant serves some time in jail followed by a period of probation where there is a suspended jail sentence outstanding. For example, a defendant might receive two years in jail, with one year to serve and the balance suspended for two years. The defendant will serve one year in jail immediately following the sentencing. Upon release, the defendant will have the remainder of the jail sentence (the original two-year sentence minus the one year already served = one year) outstanding for a two-year probationary period. If the defendant violates probation, the judge can: reprobate with the same terms and end date; add conditions of probation; or impose the remainder of the sentence (another one year in jail).

Types of Violations
There are two general types of probation violations. A new case involves the defendant being arrested or charged with a new crime while on probation. If the defendant picks up a new case while on probation, a judge will usually impose a probation detainer, which means the defendant will be held in jail without bail until the probation violation is resolved in court. A technical violation is any other violation of the terms of the probation, such as missing a meeting with a probation officer, failing to pay probation fees, or failing a drug test.

Standard of Proof
A criminal defendant is presumed to be innocent and in order to be convicted, the prosecutor must prove guilt beyond a reasonable doubt. In probation surrender hearings, the burden of proof is much lower – a probation officer must prove a violation by a preponderance of the evidence, which means it is more likely than not that a violation occurred. Thus, it is significantly easier for the government to establish a probation violation than it is to prove guilt on the underlying case.

Probation Surrender Hearings
A defendant who is accused of violating probationary terms is entitled to a hearing. The purpose of the hearing is for the probation officer to prove (again, by the less-stringent standard of preponderance of the evidence) that a violation occurred. If the alleged violation is technical, the probation officer will simply be placed under oath and tell the judge what the defendant failed to do (for example, the defendant failed to report for a meeting or failed to provide a clean urine sample). If the alleged violation involves a new case, the probation officer must call witnesses to testify in court about the facts of the new case. However, probation surrender hearings do not follow the normal rules of evidence. For example, hearsay (an out of court statement) is typically inadmissible against a defendant at trial. But at a probation surrender hearing, the probation officer can introduce hearsay evidence and the judge can consider it as long as it is deemed “reliable.” And so, with a lowered burden of proof accompanied by relaxed rules of evidence, the defendant faces an uphill battle in defending alleged probation violations.

Inability to Withdraw Admission of Violation
A defendant facing a probation violation has the right to admit to the violation and proceed directly to sentencing (similar to a guilty plea on an open case). There is a big difference between a guilty plea and an admission to a probation violation. When pleading guilty to a crime in district court, the defendant enters into a defense capped plea, which means that if a judge decides a harsher penalty than what is requested by the defendant is warranted, the defendant can withdraw his plea and go to trial. In superior court, while there is no defense capped plea, the judge typically tells the defense attorney what sentence the defendant will receive in conjunction with a guilty plea. On the other hand, at a probation violation hearing, the defendant does not know ahead of time what the judge will impose for a sentence. Additionally, if the judge exceeds the defendant’s recommended sentence, the defendant has no right to withdraw the admission to a probation violation. A judge is not bound by any sentencing recommendation, even if it is a joint recommendation presented by the defendant and the probation officer. If the judge decides to impose the maximum penalty, the defendant is stuck with that sentence.

Probation violation hearings pose unique and very serious problems for defendants. If you are charged with violating your probation, you should immediately consult with an experienced criminal defense attorney to review your options. Attorney Chris Spring has litigated hundreds of probation violation hearings and will be happy to meet with you for a free consultation.

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