In order to answer this question, the first piece of information we need to know is if you are on misdemeanor or felony probation. The second critical factor is what charges were you placed on probation for? The quick and easy answer is that you could be sentenced to the maximum sentence (under the law) for the crime you pleaded to, or were found guilty of. But, you could also be let go without doing a day in jail and have your probation ordered reinstated.
What happens to you and whether you are found to be in violation of your probation depends upon the specific facts of your case, the crimes alleged or proven, how you violated (according to the probation officer or law enforcement), and the overall experience level and skill of your defense lawyer. Probation violations can be tricky, and the law isn’t always on the side of the person charged with violating the terms of their probation. First, let’s talk about the law of probation and probation violations, with a focus on felony cases.
After being convicted of a felony, a judge will decide whether to order you to serve time in custody. This can mean going to prison (either local or state) or, in the alternative, a judge may elect to place you on probation (with or without custody attached). It is rare to go to prison on your first crime, unless it is serious or violent. Low-level felonies, with people that have limited prior crimes, are almost always granted probation. Probation could have been granted as part of a plea bargain with the District Attorney, or after a guilty verdict and sentencing following a trial. The length of probation is almost always 3 or 5 years, but, it could be longer depending upon the crime.
As part of your probation, the court will order you to accept several conditions on your behavior (if you don’t accept the conditions, then you won’t get probation, and will be sentenced to prison.) One condition of probation could be up to 365 days in county jail. People are always surprised that getting probation means they still need to go to or stay in jail, but that happens a lot. In addition to the jail time, you will have many other conditions depending on the case. The most important conditions are that you agree to not violate any other laws and you agree to meet with and be supervised by a probation officer. Most probation violations occur due to a person being charged with a new crime, or not communicating with the probation officer. Testing dirty for drug or alcohol are also common grounds for probation revocation proceedings to be initiated.
If you are charged with a new crime during the period of your probation, the judge will be asked at the first court hearing to summarily revoke your probation based upon you having violated a new law. Then, your probation violation (PV) will trail or follow your new case, usually waiting for a resolution of the new charge. People with new charges who are on probation are in a bad position. Because, as we will talk about later, there is one standard of proof (beyond a reasonable doubt) and procedure needed to prove the new charges and a another standard of proof (preponderance of the evidence) and procedure needed for the probation violation. Put simply, you are not in as good a legal position for the PV as you are for the new charge.
Here is why. You are entitled to a court hearing on your PV and have a lawyer represent you, but probation violations are always decided by a judge, not a jury. The standard of proof for PV’s is much lower than for new crimes. While the rules of evidence are the same, they are relaxed on the introduction of “documentary” evidence proving the violation. Judges almost always find someone in violation of probation based on the presented evidence. It is even possible to go to trial and be acquitted by a jury of a new charge, and still be found to have violated probation on the same evidence because of the difference in the standard of proof (again, beyond a reasonable doubt vs. a preponderance of the evidence).
Being on probation and being charged with a new crime frequently results in a plea bargain, wrapping in punishment for the new charge and the PV together. This is oftentimes referred to as a global disposition. With the proper notice, a Preliminary Examination in your new case could act as the formal probation violation hearing. That leaves you in a position where your new case is working its way through the system, but at the end of the road, no matter what happens on the new case, your PV will be awaiting you–along with your sentencing on the violation.
If you are found to be in violation of your probation, the judge will then be entitled to re-sentence you on the charge or charges you were on probation for. Yes, they get to decide whether to grant you probation again or send you to prison. Low-level violations for failing to report to the probation officer, testing dirty or new low-level crimes usually result in reinstatement of probation. There will be a cost, however, and the judge could send you to prison or keep you in county jail for up to 365 days. The judge could also extend the period of your probation. It is always a good idea to have a skilled, experienced attorney represent you when you have a probation violation. Because as just discussed, it could mean substantial jail or prison time if it isn’t handled correctly.
The Law Offices of David R. Silldorf has had extensive experience with clients who are in jeopardy from a probation violation. Handling probation violations that are wrapped together with new charges requires negotiating skills, legal skills, and prior experience. If you or someone you know is charged with a new crime and has their probation violated on an old crime, it is critical that you retain a law firm that has experience handling probation violations with successful outcomes.
