Probation generally

Probation is a sentence which is imposed instead of ordering the accused to serve time in jail or prison. A person on probation is "free" in that they are not incarcerated, but they usually have many requirements to complete and are required to give up certain rights.

After trial or entry of plea, the accused will be interviewed by the Department of Parole and Probation. The Department then prepares a written report for the judge recommending punishment. However, the decision of whether to impose probation is strictly up to the judge, and the judge can decline to follow the Department's recommendation. Further, the judge has the power to determine any terms and conditions of probation, such as whether the accused must perform community service, obtain a G.E.D, or maintain full time employment.

The length of probation cannot exceed three years for a gross misdemeanors. The term of probation cannot exceed five years for a felony. Once someone is on probation, the judge can terminate and honorably discharge the probationer at any time, regardless of how little time has actually been spent on probation. This is done by filing a motion with the court asking for early termination of probation.

A parole and probation officer can arrest a probationer without a warrant by giving the probationer a written statement setting forth the alleged violations of probation. Alternatively, the judge may order an arrest warrant for violating any terms and conditions of probation.

Once the probationer has been arrested, it is possible to be placed on residential confinement "house arrest" instead of being in jail. House arrest means that the probationer must remain at home during all times he is away from employment or performing duties of his probation. House arrest may include electronic monitoring (ankle bracelet) to monitor the probationer's whereabouts.

Hearing on violations     

 If a probationer is accused of violating the terms and/or conditions of his probation, he is entitled to notice of all the alleged violations, hire an attorney, speak on his own behalf, present any letter or other documents, call witnesses, and cross examine the State's witnesses.     

After the hearing, if the court finds there has been a violation, the court may:

  • Continue or revoke the probation or suspension of sentence;
  • Order house arrest;
  • Order the probationer to undergo a program of regimental discipline "boot camp;"
  •  Cause the sentence imposed to be executed; or
  • Reduce your original sentence and impose a new lower sentence.

Further, if the violation is the result of an arrest for a new criminal charge, the probationer will not only need to fight the violation and imposition of the underlying prison sentence, he will need defense in the new charge as well.
Discharge from probation

A probationer who has fulfilled the conditions of his probation may be granted an honorable discharge. Someone who receives an honorable discharge is immediately restored the right to vote and the right to serve as a juror in a civil action. Four years from the date of honorable discharge, he can hold office. Six years after the date of honorable discharge, he can serve as a juror in a criminal action.

A probationer who is dishonorably discharged is released from all obligations except civil liability for restitution. He does not receive the benefits of an honorable discharge, specifically he does not have any civil rights restored. Additionally, a dishonorable discharge almost always prevents any future grants or probation.

If you or someone you know is having legal issues while on probation, call us now to discuss his options.

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