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Consequences for violating probation in a Georgia court can be severe. An individual on probation (“Probationer”) could face increased penalties including prison time so it is important for the Probationer to have an attorney assist him/her with the case. The following discussion is to help the reader better understand probation matters for criminal defendants in Georgia.
What is probation?
Probation is essentially being able to serve a sentence outside of jail under the supervision of a probation officer provided the Probationer meets all of the conditions of probation as set out by the sentencing court. For example, a criminal defendant might be sentenced to a ten year sentence all of which is to be served on probation. Other sentences may be what are called “split sentences”-ones that consists of a period of jail/prison time followed by a period of probation. An example of a “split sentence” would be a person sentenced to 10 years with the 10 years to be served in the following fashion: two years in jail/prison followed by eight years on probation. The first two years would be served in custody and the remaining eight years of the sentence would be served on probation (outside of custody) provided the criminal defendant meets any and all other conditions of their sentence. In essence, the probated portion of a sentence is a jail sentence that a criminal defendant is permitted to serve outside of custody. If you are on probation and you are not clear regarding your obligations, you need to carefully review the sentencing paperwork you were provided by the court.
Typical Conditions of Probation
There are many conditions of probation that a judge can impose on an individual under sentence. Typically a criminal defendant is sentenced to two sets of conditions or requirements that they will have to meet while on probation, General Conditions and Special Conditions.
General Conditions of Probation:
The following are the typical General Conditions of Probation ordered by the court:
These General Conditions of Probation are imposed in most criminal cases in Georgia. They can however, vary slightly from jurisdiction to jurisdiction and from judge to judge. Often times these conditions can be modified to fit the circumstances of a particular case. Modifications are usually negotiated by the attorney with the prosecutor prior to the sentence being imposed. In many circumstances, probation conditions can be modified after sentencing and after an individual has been on probation for a period of time.
Special Conditions of Probation:
In addition to the General Conditions of Probation, a typical criminal sentence will have Special Conditions of Probations that may have to be followed depending on the facts and circumstances of that particular case. Examples of Special Conditions of Probation include:
While the above examples are the more typical Special Conditions of probation, it is important to remember that there are virtually countless variations on what Special Conditions of Probation may be included in a criminal sentence. Like General Conditions of Probation they will vary from jurisdiction to jurisdiction and from judge to judge depending on the nature of the offense(s) for which one is being sentenced and the facts and circumstance that are unique to each case. As is the case with General Conditions of Probation, an attorney can negotiate or often modify the requirements of the Special Conditions of Probation.
What is a Probation Revocation?
As discussed in the paragraph above entitled “What is Probation?” probation is essentially a jail sentence that is served outside of custody provided the Probationer meets all of the obligations of the sentence. If a probation officer or supervisor has reason to believe that a Probationer has violated probation by failing to abide by all or some of the conditions of probation, the probation officer or supervisor will schedule the case for a probation revocation hearing typically before the judge that sentenced the individual.
Setting a Probation Revocation Hearing or Petition to Revoke Probation
There are a variety of ways that a probation officer can begin the process of revoking a defendant’s probation. In most instances, the probation officer will file a document called a “Petition to Revoke Probation” or “Probation Violation Petition” or some variation of this title. Simply put, this is a document that outlines or describes in detail the probation officer’s allegations of how the Probationer has violated his or her sentence. Additionally, the document informs the Probationer of the location, day, date, and time of the hearing. A probation revocation hearing will typically not be set until the Probationer has been served with a copy of the petition containing the allegations.
Incarceration Pending a Probation Revocation Hearing
The probation officer has several options regarding a Probationer’s liberty or ability to remain outside of custody pending a hearing. If the probation officer cannot locate the Probationer, they will, in all likelihood, seek a warrant for his or her arrest. Once the Probationer is located and incarcerated, he or she should be served with a copy of the allegations or the petition for revocation. If the probation officer is in communication with the Probationer and he or she has been reporting to probation, the probation officer may simply inform the Probationer of the hearing date and permit him or her to continue to remain outside of custody until the hearing date. This is called a “walk-in” hearing. Finally, if the Probationer reports to the probation officer and they believe the Probationer has somehow violated probation, the probation officer may elect to arrest the Probationer and turn him or her over to the sheriff or other correctional officers until the hearing date. Typically, the Probationer will remain in custody, absent special circumstances, until the hearing date. Whether a “walk-in” hearing is scheduled, a warrant for arrest is issued, or the Probationer is arrested upon meeting with his or her probation officer will depend on the nature of the allegations against the individual and the facts and circumstances surrounding that particular case.
It is entirely up to the discretion of the judge whether or not to permit the Probationer to be released from custody on a bond pending the resolution of a probation revocation hearing.
What happens at a Probation Revocation Hearing?
A probation revocation hearing is very similar to a trial. Although the Probationer is not always entitled to a court-appointed attorney to represent them at the probation revocation hearing, the Probationer may, and should seek legal representation. The hearing will typically be conducted in two parts. First the court will read the allegations to the Probationer and then ask him or her whether they are admitting the allegations that are contained in the petition or whether they are denying the allegations. If the Probationer admits the allegations, the court will proceed to the second phase or sentencing phase of the hearing and determine what consequences, if any, the Probationer will receive. If the Probationer denies the allegations, the court will conduct a hearing (similar to a trial) in which the burden is on the State /prosecutor and probation officer to prove the allegations against you. In a criminal case, the State must prove guilt of the criminal defendant “beyond a reasonable doubt.” This is a relatively high burden. In a probation revocation hearing, however, the burden on the State is much less burdensome. The State must only prove the Probationer is in violation of his or her probation “by a preponderance of the evidence.” It is also important to understand that Probationer is no longer entitled to a jury trial for the alleged probation violation. A criminal defendant that is under sentence is only entitled to a hearing before the judge that previously sentenced him or her.
If the Probationer has been charged with violating his or her probation by committing a new criminal offense while on probation, the State/probation officer will have to prove by a preponderance of the evidence that the Probationer committed this new criminal offense. Any and all witnesses to this new criminal offense are subject to being subpoenaed to the probation revocation hearing where the Probationer, or his or her attorney, will be afforded the right to see, hear, and cross-examine those witnesses. If it is alleged by probation that Probationer has violated probation by failing to meet some obligation of probation, such as failing to report or failing to pay fines then, in this case, the only witness against you at the hearing would in all likelihood be the probation officer supervising the case. During the probation revocation hearing all of the rules and regulations regarding the admission of evidence and examination of witnessed will be strictly adhered to. Should a Probationer find himself or herself facing a probation revocation hearing, it is critical that the individual obtain an attorney to represent them at the hearing. The court will not, and cannot, provide legal advice or counsel regarding any aspect of the case.
Jail and Possible Consequences of a Violation of Probation
Should a court determine that the Probationer has violated probation, the court has a number of options on how to impose punishment. The court may revoke the individual’s probation and require him or her to serve some or all of the remainder of your probated sentence in jail. If the Probationer has violated a “General Condition of Probation” (See, the paragraph above entitled Typical Conditions of Probation), the trial court may revoke up to two years of the remainder of the felony probated sentence. If, however, the court finds that the Probationer has violated a “Special Condition of Probation or that he or she has committed a new felony offense, the court would be authorized to revoke the balance of any remaining probation. On a misdemeanor sentence, the court could revoke all of the remaining portion of the sentence for a violation of either a General or Special Condition of Probation. If the court revokes only a portion of probation and not the balance or remainder of the probation, the court may then reinstate the individual on probation with all original conditions in place upon the Probationer’s release from custody.
Alternatives and Consequences Other than Jail for Probation Revocations
It is important to remember that the court has wide latitude in determining how and what, if any, punishment to impose. The court may simply order an individual to continue with probation, or the court may require additional community service, intensive probation, diversion centers, and probation detention centers, special alternative incarcerations such as work-release and/or in-home incarceration, ankle monitors, and/or additional counseling. The court is not limited to simply ordering the Probationer to go to jail. Our firm works closely with a variety of treatment providers including counselors for alcohol and/or drug addictions, anger and violence, and other personality disorders. We can put you in touch with in-home incarceration agencies and other agencies in order to present the judge with options other than simply incarceration.
Please contact our attorneys at Gentry, Smith, Dettmering, Morgan & Schnatmeier, LLP www.cobbcountyattorneys.com if you have questions about probation matters. Our firm regularly handles probation matters in Cobb County, the cities of Marietta, Smyrna, Acworth, Austell and Powder Springs; Cherokee County, the cities of Canton, Woodstock and Holly Springs; Douglas County, the city of Douglasville; Paulding County and the cities of Hiram and Dallas; Fulton County, the cities of Sandy Springs and Atlanta.
UNDERSTANDING PROBATION VIOLATIONS AND REVOCATIONS IN GEORGIA COURTS
By: John S. Morgan, Esq. and Robert F. Schnatmeier, Jr., Esq.
Marietta DUI Attorneys Gentry, Smith, Dettmering, Morgan & Schnatmeier, LLP