When a person fails to comply with the terms of probation, it becomes a probation violation. Can you touch a little bit on how it’s termed as a violation? What should they expect?
Sure. There are different types of violations. A violation can be anything from not performing community service or not making fine payments on time to something more significant, such as committing a new offense—sometimes it’s a related offense; sometimes it’s a completely different offense.
Judges generally aren’t going to deem you as having violated your probation for committing traffic violations—speeding tickets, going through stop signs, parking tickets, anything that you can, in essence, take care of by simply sending in a check to the court. Any other type of a crime would constitute a violation of probation because one of the conditions of probation is good behavior, which generally judges will term as “do not violate any local, state or federal laws during the period of your probation.”
So what happens when you’ve officially violated probation? How will you know?
Under the normal procedure, if there’s a probation officer involved, he or she will either notify the court or the prosecutor by filing a probation violation report, which then will either trigger the court or the prosecutor to submit an affidavit in support of an order to show cause.
An order to show cause is served on the defendant and requires them to appear in court and, in essence, show cause either why they shouldn’t be found in violation of their probation
—in other words, show proof that they have in fact complied—or if it’s determined that they haven’t complied with the term(s) of probation, what appropriate sanction should be imposed by the court for their failure to comply.
What consequences or sanctions can be imposed?
The consequences of a probation violation varies tremendously based on what the violation is. Simple violations such as failing to turn in community service on time or failing to make fine payments, sometimes those are resolved by way of giving extensions of time or simply adding additional fines or community service.
More serious violations like new offenses can be met with anything from un-suspending a portion of the suspended fine to adding additional community service or counseling requirements.
The most extreme consequence to a violation would be the imposition of a suspended jail sentence.
In most cases where an individual is placed on probation, the court may not impose the jail sentence. But typically at sentencing the court will suspend some or all of the maximum jail sentence, and that can then be imposed or un-stayed in the event that somebody doesn’t comply.
So a probation violation could be a couple of days in jail in the case of a felony. It could mean that probation is revoked and the individual actually be sentenced to serve a term of prison, if that was the original sentence imposed and stayed when they were placed on probation.
What happens at the court hearing for a probation violation? It goes from the probation officer to the court and then the judge. Is there more to a court hearing for probation violation?
In the case of a probation violation, the person who’s alleged to have violated their probation is entitled to an evidentiary hearing. At the hearing, it’s the prosecution’s burden to present evidence to show that the person has not substantially complied with his or her probation.
The standard is not that they must strictly comply. It’s a valid defense that they substantially complied with the conditions of probation or that their non-compliance was not willful or voluntary. In other words, if somebody is to be held in violation because they didn’t pay their fines, for example, but they were incarcerated on another case that prevented them from working, obviously the payment of fines is out of their control, so it wouldn’t be considered a violation.
But the normal procedure is, when an affidavit to show cause is filed, the court will generally schedule an order to show cause hearing. At the first hearing, the individual will either be asked to admit those allegations, admit that they violated their probation, and then the court simply addresses what the appropriate sanctions should be.
However, if the person disputes that they violated the probation, they would enter what are called “denials of the allegations,” and the court will set a separate evidentiary hearing. At that hearing, the defendant is then allowed to present evidence to show that they have substantially complied with the terms of their probation, and the burden is then placed on the state or the court to show that the probationer has not complied. If the court finds that they haven’t complied, then sometimes you’ll even have a separate sentencing hearing on the order to show cause violation.
Read more about how probation violations affect deferred adjudications, or judgments (e.g., plea in abeyance).