After a case is over and the accused person has been sentenced following either conviction after a trial or having entered a plea, one is often placed on probation rather than incarcerated. Probation is essentially for a period of time typically anywhere between about 3 months and two years (but it can be shorter or a lot longer) where, at the end of that time period, if its conditions have been complied with, the case will be either dismissed or, if one was convicted, then the sentence will simply be completed.
Some of the many possible conditions while on probation might be:
- Do not get charged with a new crime or break the law in any way;
- Do not fail to report to a probation officer either in person, by phone or in writing, whichever one has been ordered;
- Complete any program ordered by the court such as, for example, substance abuse counseling, an alcohol education course for those operating under the influence, sex offender counseling, a batterer’s program or an anger management program.
- Do community service;
- Pass random drug and alcohol tests;
- Remain employed;
- Get a G.E.D.
- Do not leave the state without permission;
- Abide by any “no contact” or “stay away” order;
- Write a letter of apology;
- Obey a curfew;
- Notify the court of any changes in address, phone number or employment;
- Wear a G.P.S. bracelet and comply with the rules concerning its use;
- Pay any assessed fees, fines and, if any, court-ordered restitution.
Nationally, more than 3,600,000 people were on probation across the country.
Violations of probation are common and are arguably responsible for a huge percentage of the inmates incarcerated in Massachusetts jails and prisons who were not initially sentenced to a period of incarceration.
If your probation officer becomes aware of a violation of any of your conditions of probation, they will likely send you a notice of “probation surrender.” In some cases, depending on the seriousness of the violation, the probation officer might just request the court issue a warrant for your arrest at the very outset. You will have to appear at court for an initial hearing to formally notify you of your alleged probation violations and to determine if there is probable cause to believe you may have violated probation. If that is found, then you will come back for a second hearing known as the final surrender hearing. The judge could, in the court’s discretion, possibly order you held in custody without bail at least until the final surrender hearing is conducted.
At the final surrender hearing, your attorney may cross-examine any witnesses the probation officer might call forward or call witnesses to testify on your behalf. But you do not have the same number of rights or protections that you did when you were originally charged with the crime. Among other things, you do not have a right to a full-blown trial and hearsay can be used against you. Or, if you don’t want to contest the fact that you violated your probation, you can agree to or “stipulate” to the violation and try to work out an agreed-to consequence of the violation. If your attorney cannot negotiate an agreement with the probation officer, then you can still stipulate to the violation and your attorney can argue to the judge what you think is a fair result.
If you are found to, in fact, be in violation of probation, then the final surrender hearing enters its second phase. What should the disposition or consequences of the violation be? There are a number of things that can happen to the probationer including:
- For a relatively minor violation, one can be found in violation, given a warning, and then resume the original probation.
- One can continue their term of probation, but be given stricter supervision and more stringent conditions such as being ordered to begin counseling or drug testing or some new program that was not part of their original probation conditions at sentencing.
- One can have their period of probation lengthened.
- If one had their case originally continued without a finding, the judge could order this be turned into a guilty conviction.
- One can have their probation revoked and then be incarcerated. If one was originally placed on probation with a suspended sentence of incarceration hanging over their head, then they can be jailed for that full term. However, if one was originally placed on “straight probation” without any suspended sentence, then, after probation revocation, the judge can impose any period of incarceration including the maximum sentence allowed by the law for the given offense.
A notice of probation surrender should not be taken lightly and it should not be presumed that it will just result in a conversation where some sort of confusion is cleared up. There very well may be severe consequences such as a revocation of probation and incarceration. This is why you might be well advised to engage the help of a criminal defense attorney with extensive experience handling probation surrenders. There may even be some occasional instances when an experienced criminal defense attorney can resolve the matter after speaking with the probation officer and have the probation officer agree to ask the judge to withdraw the probation surrender notice entirely.
Have you received a notice calling you in for a probation violation hearing? If you need representation for a violation of probation, contact Attorney Peter Elikann for a 100 % private and confidential consultation at 617-742-9462.