A violation of probation (commonly referred to as a “VOP”) proceeding is much different than being charged with a new crime. A person who has been accused of violating his or her probation needs to be aware of the legal standards at the hearings and potential consequences that could occur as a result of a proven violation.
Did you know?
- A person on probation can be arrested without a warrant.
- A person who has been accused of violating his or her probation does not have a constitutional right to a bond. Many attorneys will say that a bond hearing is pointless, but in fact, the statutes and criminal rules provide for bail in certain circumstances.
- A person does not have a right to a jury trial.
- A person can be forced to testify against himself.
- The State can use Hearsay, but not a sole basis to prove your violation.
- The State does not have to prove the violation beyond a reasonable doubt. This means that even if you have new charges that have been dropped or even if you were found not guilty by a jury, the State may use these charges against you.
- If a person is found in violation, that the gain or commutation time may be forfeited.
- A person may be sentenced to a term without the possibility of future gain time.
- A person may be sentenced to any term the court may have originally sentenced.
- Persons who qualify as a Violent Felon of Special Concern have special issues that must be addressed.
As you can see, a person charged with violating his or her probation has many hurdles to overcome. It is important that you do not admit to violating your probation until you have been advised of the potential consequences. Many counties have fast-track dockets, sometimes called Early Case Resolution, so time is of the essence. Although the State may have the initial advantage, I have successfully defended many clients accused of violating their probation.
WHAT IS A PROBATION VIOLATION?
A part of a sentence, the court may place a person on probation. Whether misdemeanor or felony, a probation officer will instruct the person on the conditions of probation. The conditions are simply things the court wants a person to do or things the court wants a person to refrain from. If a person disobeys these conditions, the probation officer will file an affidavit stating that the person has violated the terms of his or her probation. These violations can be in two forms: technical or substantive.
A technical violation is any violation of either a general or special conditions of probation.
Did you know?
- Changing your address for one day without notifying probation,
- Failing to pay court costs or restitution,
- Missing a monthly reporting,
- Testing positive for controlled substances, and
- Failing to complete substance abuse evaluations
Those are just some examples of technical violations.
A substantive violation of probation occurs when a person commits a new crime.
Did you know?
- You may be sentenced to any term the court may have originally sentenced, up to and including the maximum penalty.
- For felony violation, the score sheet points may be increased by as many as 24 points! This means that a person who may not have scored prison originally may be subject to incarceration in the Department of Corrections.
- If the new crime occurred in another county, the sentence in the violation is not presumed to be concurrent.
1. You pled to Burglary of a Structure, a felony of the third degree. The original score sheet had a total of 38 points. After 24 months on probation, you could not afford to live in your apartment, so you moved back to your parent’s house. Since it was your parent’s house, you figured that you didn’t have to tell the probation officer until the monthly meeting. You were scheduled to terminate probation in two weeks.
Potential Result: Probation can violate you for failing to update them when you moved, so based on that violation you now score to a minimum term of 12 months in the Department of Corrections. The judge may sentence you up to five years of imprisonment even though you have done everything else to the best of your ability. The time on probation is not considered towards a term of incarceration.
2. You pled to Grand Theft, a felony of the third degree. This was your first felony offense, so the court withheld adjudication and sentenced you to eighteen months of probation. While on probation, you were stopped for speeding. You forgot to pay a ticket from two years ago, so the officer gave you a citation for Driving with a Suspended License. When you went to the monthly meeting to the probation officer, the officer arrested you in the waiting room for violating the law and took you to jail. Your next hearing isn’t for two weeks.
Potential Result: Based on the violation, you may become a convicted felon. Additionally, your license may be suspended for the driving violation in addition to the adjudication for grand theft. You could receive a sentence up to the statutory maximum of five years, even if you had done everything else correctly.
CONTACT ME BEFORE IT IS TOO LATE!
It is important that you have competent representation to evaluate the violation and determine whether the allegations can be proven. Score sheet preparation is critical, and the State does make mistakes on original score sheets that may be corrected at this stage. I have evaluated hundreds of violations and prepared more than a thousand score sheets. If you have any questions, please contact my office.