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.