Probation Violations, Revocations & Terminations

Probation is a form of supervision, in lieu of or in addition to a county jail sentence, which most judges will order upon conviction. (Penal Code Section 1203.) Instead of putting the defendant in county jail for the maximum possible sentence, the judge will give the defendant another chance while being supervised by the probation department or the court. If the defendant then violates the terms of probation, then the judge can place the defendant back in jail. However, one cannot be incarcerated on a violation of probation longer than his or her maximum sentence. For example, the judge ordered that the defendant be placed on 36 months of informal probation for a battery (Penal Code Section 242) conviction. The defendant then violated informal probation, and the judge sentenced him or her to180 days in county jail on the probation violation. If the defendant is not on probation for any other offenses then the defendant has served his or her maximum sentence. If the defendant again violates probation, the judge cannot sentence him or her to any further incarceration time.

Probation can be formal or informal. The terms of formal probation usually are the probationer must report to their probation officer at least once a month, obtain permission to leave the county if they are going to be gone for more than 48 hours, and obtain permission to move out of the county. The judge usually orders formal probation on felony convictions. The terms of informal probation usually are updating your address with the court if you move and avoiding any further arrests or convictions. Sometimes the judge will order counseling or order the defendant to stay away from a location or the alleged victim as further terms of probation.

As long as the probation condition reasonably relates to the offense on which they received probation, then the probation condition is valid. Common conditions of probation are avoid any further arrests or convictions, abstain from alcohol, attend AA meetings, stay away from the alleged victim, make restitution payments to the alleged victim, counseling, community service, submit your person, vehicle and house to search by a probation or peace officer at any time of the day, etc.

Misdemeanor informal probation can be as little as 6 months or at most 36 months. Felony probation usually lasts for 36 months.

Violation or Revocation of Probation

If the prosecutor or the probation officer believes that the defendant violated probation then the agency will file a Violation of Probation, sometimes referred to as a Motion to Revoke (“MTR”). The defendant is then entitled to a probation violation hearing. The probation violation hearing differs from a jury trial in that the judge makes the final decision in the hearing and evidentiary rules are relaxed. The standard of evidence is also different. The judge decides if there is probable cause to believe the probationer is in violation of their probation. During the jury trial, the jury decides if there is enough evidence beyond a reasonable doubt.

Sentencing on a violation of misdemeanor probation usually results in county jail time. Sentencing on a violation of felony probation can result in county jail time and/or state prison time.

Common Violations of Probation

Because there are so many terms of probation in domestic violence cases and because the probationer usually faces heavy fines and payments, violations of probation in domestic violence cases are common. Most defendants sentenced on domestic violence cases must attend 52 weeks of counseling and pay fines and fees. In most cases, the 52 weeks of counseling cost over $1000. Many people cannot afford that price tag. Although it should not be the case, some probation officers or prosecutors will violation your probation because you cannot afford to pay for the domestic violence classes and, thus, do not continue the classes.

Probation may also be violated because the probationer failed to report to their probation officer. This is only unique to felony probation because reporting is usually not a term misdemeanor informal probation. Some probation officers will simply violate your probation if you are 5 or 10 minutes late to your appointment with your probation officer.

Termination of Probation

While violation or revocation of probation is an unhappy event, termination of probation is usually the happy end to a criminal case. Probation can terminate naturally as when the probation period naturally expires. The judge also has discretion to prematurely terminate probation in the interests of justice. (Penal Code Section 1203.4.) Usually the judge requires that all conditions of probation have been satisfied (including the payment of restitution, fines, and fees) and that the probationer has stayed out of trouble for a while before the judge will terminate probation.

If the judge has terminated probation in your case or if probation naturally expired in your case then you may be interested in erasing the case entirely from your record, that is, getting that conviction expunged.