Formal vs. Summary Probation
There are two kinds of probation: formal probation and summary probation to the court. Formal probation requires a defendant to report regularly to the Department of Probation, summary probation does not require reporting to probation, but may require reporting to the court, such as to show proof of completion of a condition of “court probation.”
A sentencing judge will impose conditions of probation that are reasonably connected to the conduct underlying the conviction and that will be reasonably likely to further a defendant’s rehabilitation. The court may impose county jail as a condition of probation, generally not to exceed 365 days of custody. The court may also “stay” a prison sentence (in felony cases) in order to motivate compliance with probation. Probation is generally imposed for a 3 year or 5 year period of time.
Probation Violations
Probation violations begin with either the probation department or the prosecutor submitting a report to the court detailing exactly what they claim a defendant did or did not do in violation of the terms and conditions of probation as ordered by the sentencing judge. The probation officer will submit to the judge a recommendation as to what punishment probation believes is appropriate. An arrest warrant may be issued if the defendant is not already in jail. A defendant has no right to bail in felony probation violation matters, and there is no set time-frame in which an in-custody defendant must be brought to court to face a probation violation hearing.
Violation Hearing Process
The violation hearing process is comprised of two or three parts: the initial hearing where the defendant is advised of the alleged grounds for the violation, a second hearing where the violation is contested at a hearing, and a third hearing where the court decides what punishment, if any, should be imposed for any proven violations. In a felony matter, on occasion, where there are no contested factual issues, the first and third hearings are combined, making only one appearance in court necessary.
Misdemeanor probation violation matters are often handled in one court appearance, unless the alleged violation involves particularly serious conduct, such as domestic violence or violations of restraining orders. The great majority of probation violations on misdemeanor matter involve failure to complete a court-ordered program or failure to complete public work service. These matters are sometimes easily handled, especially on the first violation, but local court practices vary greatly in this area. For example, there are some courts that will impose significant custody for even a first time minor violation of a court order, and other courts in the same circumstance that have no problem reinstating probation with no additional custody time.
Right to an Attorney
A defendant has a right to counsel at every stage of the violation process. A defendant has the right to force witnesses and evidence to the violation hearing. Plea bargaining generally does not occur at these hearings, unless there is some evidence of other crimes that are not yet charged, or unless the hearing judge is willing to provide an indicated disposition if the hearing is waived.
This office has defended literally hundreds of matters alleging every kind of probation violation. We are very familiar with how the probation violation process varies substantially, even within different branches of the same court. Please contact us for accurate and honest advice regarding how we may defend you against an alleged violation of probation.