Rhode Island Public Defender

Our mission is to provide high quality representation to our clients, fulfilling the governmental obligation of effective assistance of counsel, fundamental fairness and due process. Our goal is to provide client-centered advice, holistic representation and zealous advocacy. Our commitment is to treat our clients with dignity, compassion and fairness.
Mary S. McElroy, Public Defender

What is Violation of Probation?

VIOLATION OF PROBATION occurs when a condition of probation is broken. General conditions of all probation (whether it is straight probation, deferred sentence probation or suspended sentence probation) are to “keep the peace and be of good behavior”. There may also be special conditions, such as continuing to be employed, abstaining from alcoholic beverages, living in a halfway house or participating in some rehabilitative or counseling program. If the prosecution believes the terms of probation have been broken, it will charge the defendant with a violation of probation. S/he will be brought to court, usually under arrest, and given a hearing on whether the conditions of probation were violated. This hearing will be in front of a judge, not a jury, whether the original offense was a misdemeanor or felony, whether the conviction occurred in District or Superior Court.

There are fewer rules of evidence at a probation violation hearing and it does not take as much proof to convince the judge as it does at a trial; the proof does not have to be “beyond a reasonable doubt”, but simply enough to “reasonably satisfy” the judge. At the hearing, the prosecution will present witnesses who may be cross-examined by the defense lawyer, the defendant may testify and/or present witnesses. The judge will then make a decision.

The sentence after a finding of probation violation will depend on what kind of probation was imposed originally. It is possible that the judge will decide to continue the defendant on probation if the violation was not serious. That happens occasionally but not frequently. More often, a jail sentence will result. The length of the possible jail sentence will depend upon whether the probation was attached to a suspended sentence or was straight or was deferred. If the probation was attached to a suspended sentence, the sentence that can be imposed on a violation can be less than or equal to the period of imprisonment originally suspended. In other words, if after trial or guilty plea, a ten year sentence was suspended, ten years is the maximum jailtime that can result from a violation of probation; it could be less.
If the violation occurred on straight probation or after a deferred sentence, the maximum jailtime that may be imposed is whatever the law allows for that offense. On a misdemeanor, the maximum would ordinarily be one year imprisonment; on a felony, it may be much more.

The most common reason why someone is violated on their probation is that they have been arrested for a new offense. It is possible, however, to be violated just because the behavior on probation was not good enough, even if no new crime was committed. If, for example, a probation condition was living in a halfway house for alcoholics, and the defendant left the house without a very good reason, s/he may be violated.

It is important to understand that a violation of probation and any new crime the defendant is charged with are two separate things, even though the new charge may be the reason for the violation. A defendant can be punished as a violator even though s/he is eventually found not guilty of the new offense. When a defendant is violated on probation, the sentence that happens will be a modification of the original sentence. If that defendant is later found guilty of committing the offense which caused the probation violation, a new sentence will be imposed. Contrary to popular belief, this is not double jeopardy.

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