A violation of misdemeanor or felony probation is typically viewed as a broken promise between the defendant and the Court that sentenced that person to a term of probation. An attorney has to be careful when dealing with violations of probation and keep in mind the facts of the original offense as well as those giving rise to the violation. While many people consider the case over when placed on probation, it is important to understand that once you have been charged with a violation of probation, you can be sentenced up to the maximum penalty allowed on the charge for which you were originally placed on probation. For example, if you were placed on probation for 5 years for Aggravated Battery with a Deadly Weapon, a second-degree felony, a violation of that probation could result in a sentence of up to 15 years in prison, the maximum for that charge.
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When charged with a probation violation, the rules are very different from those involved in a typical criminal case. First, a person charged with violating felony probation is typically denied any bond pending first appearance before the Judge. If you are arrested outside the county that placed you on probation, you will be held until you are transferred back into the county and appear before the court that originally placed you on probation.
At first appearance, the Judge will ask whether you want to admit or deny the violation of probation. If you deny the violation, the Judge is likely to set your case for an evidentiary hearing in which the State Attorney’s Office would have to show that you committed a “willful and substantial” violation of your probation. Unlike regular criminal cases, the burden of proof for the prosecutor to prove a violation of probation is a “preponderance of the evidence,” which means that instead of having to prove the violation “beyond a reasonable doubt,” it only has to be shown that you “more likely than not” violated your probation as alleged. This is a far less burden for the State Attorney’s Office to meet which must be considered when deciding how to proceed in your case.
You may also admit the violation of probation at first appearance, and proceed to sentencing. If you hire an attorney to represent you before first appearance, you may have an opportunity to negotiate the disposition of your case before entering an admission. However, there is no guarantee that you will receive a negotiated disposition in your case. Absent an agreed upon sentence with prosecutors, you may enter an admission and the Judge will set the case for sentencing. At the sentencing hearing, the prosecutor and defense attorney have a chance to argue the appropriate sentence under the law of your case. There are many legal implications which must be considered at sentencing based on the crime for which you were placed on probation and the nature of the violation, so it is important to have a criminal defense attorney with experience in both misdemeanor and felony violations of probation to represent you.
An understanding of the many aspects of probation violation cases is critical to make an informed decision about how to proceed in a given case. An experienced criminal attorney can help make a difference. If you have been charged with a Violation of Probation, contact the Law Office of John M. Phillips for a free consultation.