My brother is out on parole for violation of probation for a misdemeanor driving case. We live in Illinois and he went to Wisconsin with some friends and was pulled over by the state police and was charged with misdemeanor possession of marijuana and misdemeanor possession of Amphetamine/LSD/Psilocin. If he is found guilty will he go back to jail?
In the cases like this, the state almost always file a petition to revoke probation. In that situation, the person was on probation for a driving case. While on probation, he picked up another driving case. He is extremely high risk to reoffend. Jail could be a possibility. Hire a good lawyer!
Your brother needs to hire a Wisconsin attorney as soon as possible to deal with the new matters and tell his Illinois attorney about what happened in Wisconsin as well. The State will likely file a Petition to Revoke his Probation on the Illinois case due to the new Wisconsin charges. It is never a good thing to pick up new cases while you are on probation for another matter.
The answer to this question is for informational purposes only and does not form an attorney-client relationship.
He does not need to be found guilty to be sentenced to jail for the Illinois probation. A judge could lock him up for violating any condition of his probation, whether or not his violation is based on picking up a new case. I am fearful that he's in trouble for leaving the State. Very often judges set conditions that you cannot leave the State without the advance permission of the judge or at least the probation officer.
He needs to get lawyers for each case, fast. I am pasting part of a blog post about violations of probation below for you.
One all too common scenario is that a defendant picks up a case and receives probation. Then, while on probation, that same defendant is arrested and picks up a new case.
A common question asked at this time is Can you be locked up by the probation judge separate and apart from the new case?
The answer is yes.
Some people in this situation think that they only have one case pending, the new one. Not true. You have 2 cases going on at the same time, not one. One is the new criminal case where a judge can set bond, you have the right to go to trial or plea, and you have the right to a jury trial where the State has to prove you guilty beyond a reasonable doubt.
The other case you can expect to see is that the State would file a Petition to Violate your probation based on the argument that one of the conditions of one’s probation is not to break the law as well as any other accusations that they can come up with. In some Illinois Counties like Cook, these are called Violation of Probation (VOP) proceedings. In other Illinois counties, they are called Petition to Revoke Probation proceedings (PTR). They are the same thing.
One can expect a charge that one violated probation by breaking the law. One can also find such a petition being filed against a defendant for any failure to obey the terms and conditions of probation such as not reporting to your probation officer or willfully refusing to pay fines and fees.
Just as the judge on the new criminal case can set bond on you, the probation judge can set a separate additional bond on this accusation. The State has the opportunity to try to prove you violated your probation by a preponderance of the evidence, which means more likely that the defendant violated probation than not. That defendant does not have the protection of proof beyond a reasonable doubt and he/she do not have the right to a jury trial in a violation of probation proceeding.
If the judge finds the defendant violated probation, then any sentence that defendant you could have received when the judge originally chose to give probation, that defendant can receive again on a re-sentencing. If it’s a misdemeanor probation, that can mean County Jail time. If it’s a felony probation, that can mean prison.
Anyone in this position needs a good criminal defense lawyer.
Unfortunately, there is a significant chance that your brother will have to go back to jail because of his new possession case, but it depends on a variety of factors including: the facts of his original case, the prosecutor, the judge, whether your brother has any prior criminal history and, if so, for what, whether he has ever violated a conditional of his sentence before and, if so, for what. Hopefully he has an attorney who is experienced and can make some good arguments on his behalf.
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