PROBATION ISSUES
When a person receives a probationary sentence, they are assigned to a probation officer, who will monitor their progress as they complete their sentence. Probationary sentences can be imposed pursuant to a plea or post-trial sentencing.
Probationers are often required to report on a monthly basis to their probation officers. And, depending on the terms of the probationers’ sentence, the probationer may have to pay fees and fines, complete court-ordered classes, perform community service, and pass drug tests at each report/visit. If a person does not comply with probation, a warrant can be issued for their arrest. It is my advice to strictly adhere to the conditions of probation to avoid further negative run-ins with the law. Probation is often a trap for people because people forget that they are basically “in custody” even though they are physically free. They must abide by all of the probationary rules or else they can end up back in jail for the duration of their probationary sentence.
A probationer can violate probation a few different ways. Here are the ways:
- A technical violation is when you are alleged to have violated a technical condition of your probation, such as paying restitution, fines or court costs, completing community service, meeting with your probation officer, not leaving the jurisdiction, etc.
- A special condition violation is when you are alleged to have violated a special condition of probation, such as having no contact with the victim, earning a GED, etc. Any condition of probation can be deemed a special condition of probation.
- A substantive violation occurs when you are arrested because you have committed a new criminal offense while on probation.
If and when a probation officer believes their probationer has violated probation, they can allege said violation to the court and petition for the issuance of an arrest warrant. An arrest warrant for a violation of probation (VOP) usually has a "no bond" provision, meaning that unless you retain an attorney to resolve your case quickly or obtain a bond, you may be sitting in jail for weeks or months until your probation violation case is heard in court and/or resolved.
At a hearing for a probation violation, there is no right to a jury trial and the burden of proof is merely a preponderance of the evidence (as opposed to the "proof beyond a reasonable doubt" standard required for a criminal jury trial). As a result, prosecutors may have a much easier time winning a violation of probation hearing, as their standard of proof is so low. If the court determines a probationer has violated terms of their probation, the court has a number of sentencing options depending on the nature of the violation and the length of the probationary sentence. Here are some of the punishments a court can impose upon the finding of a probation violation:
- Incarceration for some, if not all, of the remaining probationary sentence.
- Additional months on probation.
- Imposition of additional community service, fines, classes, etc.
It should be noted that the court is required to review each allegation of violation on a case-by-case basis to determine under the particular facts and circumstances of the case, whether a particular violation is willful and substantial by the greater weight of the evidence. That is the standard: whether a violation of probation was willful, deliberate and substantial. To ensure the best result possible, it would be best to consult with an experienced attorney to discuss possible defenses to alleged probation violations. At Kaufman Law Firm, we handle probation violations for misdemeanors and felonies in counties throughout the State of Georgia.