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Understanding Probation and Probation Violations

Posted by Erik Fine | Apr 11, 2021 | 0 Comments

   One of the most common communications that I receive are questions from family and friends of people who are on probation for a criminal charge conviction who find themselves in the midst of a probation violation and are in jail with NO BOND.  To the layperson, probation and probation violations are very confusing and extremely frustrating to understand.  A probationer is in jail and can't get out....and there isn't a court hearing scheduled for sometimes weeks (or even months!).  The probationer is going to lose their job.  Miss valuable and special time with family during the holiday season.  Maybe they are the sole income provider and now the future and security of the family home is in serious jeopardy.  The purpose of this blog is to answer some of the most pressing and necessary questions regarding probation and probation violations.  It goes without saying that each individual case regarding a probationer and a probation violation are separate and distinct.  If you have questions, please feel free to contact me and we will discuss the situation.

   The most basic and important fact to learn and remember regarding probation is this:  PROBATION IS A SENTENCE IMPOSED BY A CRIMINAL COURT.  Probation isn't a "condition" or just a "warning" against future criminal acts or charges.  IT IS A SENTENCE OR PART OF A SENTENCE AFTER A FINDING OR PLEA OF GUILT.  When someone is placed on probation by a criminal court, it is not necessarily intended to replace or supplant a jail sentence.  It is actually PART of the jail sentence.  And probation comes with conditions.  Let me give you a scenario to illustrate this point.

   Imagine a person is arrested and charged with Assault 3rd Degree in St. Clair County, Alabama.  The defendant is brought to the St. Clair County Jail, booked and then posts bond.  The defendant is given a court date for him to see Judge Alan Furr.  The defendant hires an experienced and knowledgeable attorney...ME!  After examining all of the evidence and perhaps determining that the best course of action would be not to go to trial, but instead to negotiate the very best plea bargain that we can with District Attorney Lyle Harmon and the assigned Assistant District Attorney to the case.  Lets pretend that the plea arrangement that we reached with the DA's office is a six month jail sentence...SUSPENDED (meaning that the defendant doesn't go to jail at that point), pays a fine, court costs and is given two years UNSUPERVISED PROBATION (meaning that the defendant doesn't have an assigned probation officer that he must see periodically.  Rather, the defendant must simply obey all state laws and not get arrested or charged in another crime for that two year period of time).  So what does this sentence really mean in simple English?  It means this:  The defendant has PLED GUILTY to the crime of Assault 3rd Degree (a Class A misdemeanor punishable for up to 1 year in jail), but the defendant is free to resume his normal life WITHOUT going to jail.  However, this plea has an additional condition known as PROBATION.  This defendant cannot commit another crime for a two year period of time...This is his PROBATION PERIOD.  So as long as he obeys the laws and doesn't get arrested or charged with a crime for the next two years, he won't see the inside of a jail cell and his life continues as normal.

   But lets say this defendant gets caught shoplifting at Walmart and is arrested (Theft of Property 4th Degree).  This defendant is not only charged with this NEW criminal charge, but he has VIOLATED THE TERMS AND CONDITIONS OF HIS PREVIOUS CRIME...in this example, the Assault 3rd Degree.  So the next thing you know, the defendant is then charged with violating the terms of his two year unsupervised probation and is ADDITIONALLY CHARGED WITH ANOTHER SEPERATE OFFENSE CALLED A PROBATION VIOLATION.  This is not a good situation for the defendant at all!

   Now the defendant is placed in jail not only for the shoplifting, but also the additional new charge of PROBATION VIOLATION.  Lets say the bond for the shoplifting is $1,000.00.  But there is NO BOND for the probation violation...so now the defendant can't get out of jail because of the probation violation!  To make things worse, there is no immediate court hearing date scheduled and the defendant sits in jail.  Why, you ask??  BECAUSE THE DEFENDNANT VIOLATED THE TERMS OF THE PLEA ARRANGEMENT NEGOTIATED BETWEEN ME AND THE PROSECUTION FOR THE ASSAULT CHARGE!  Remember that six month SUSPENDED jail sentence?  Guess what??  Its starting right now!  The defendant was PREVIOUSLY SENTENCED TO SIX MONTHS IN JAIL, BUT IT WAS SUSPENDED!  So the defendant is actually SERVING his agreed upon jail sentence!

   In reality, Judge Furr COULD let you sit in jail for six months if he feels that you deserve to do the full six months.  He could determine that you broke your word and agreement on the Assault case and you knew what was at stake.  Judge Furr could also let you out of jail on another bond and wait and see the outcome of the new shoplifting case before doing anything.  The District Attorney's Office could wait as well...or file a motion for a PROBATION VIOLATION and set a hearing before Judge Furr.  They have that right to do just that.  While its true that the defendant is by law allowed to have a PROBATION VIOLATION HEARING, assume that the evidence Walmart has clearly shows the defendant stealing something and concealing in in his pocket and walking out of the store on video?  I'm a very good lawyer, but how do I refute this kind of evidence? 

   What this example should is intended to show the reader is that probation is not simply a slap on the wrist for a previous criminal charge.  Probation is a sentence and it comes with conditions that should and must be followed completely and without exception.   

About the Author

Erik Fine

Attorney Erik D. Fine, A.A., B.S., J.D. Mr. Fine, an Alabama native, is a graduate of Mountain Brook Public Schools. He received an athletic scholarship to play baseball at Kansas City Kansas Community College from which he graduated with an Associates Degree in Law Enforcement in 1989. It was i...

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