Violations of Sentences
At the end of an Illinois criminal prosecution, if it does not end in a finding of not guilty or a dismissal of some sort, the defendant is sentenced. The sentence can be prison, or some form of non-penitentiary sentence. This article is designed to deal with the latter, as sentence violations relating to prison sentences and the subsequent Mandatory Supervised Release (parole) are handled differently.
Sentences which do not send the defendant to the Illinois Department of Corrections usually require some sentence which places the defendant under observation of the court system. The three types of sentences authorized by statute for this purpose are Court Supervision, Conditional Discharge and Probation. All three are possibilities for misdemeanor offenses, and for a felony only Conditional Discharge or Probation are possible.
Roughly speaking, the three sentences are definable in this way: Probation requires reporting to a Probation Officer, who monitors the conditions of the sentence and the services ordered for the defendant and reports to court. Conditional discharge is non-reporting probation, where completion of the terms of the sentence remains up to the individual and the report to the court comes directly from the defendant and the State’s Attorney. Supervision is like Conditional Discharge with the important distinction of not having a conviction entered on the record of the defendant (which is why it is not available in felony cases).
It is not the distinctions of the sentences which matter in a violation, because in that sense only the manner in which the court is advised is actually different. However the court is advised, a petition to revoke (or a probation violation notice, depending on the jurisdiction you are in) is filed.
The similarity of the sentences does matter here. All sentences to each of these three classes or release are accompanied, up front, by written sentencing orders. All contain similar basics – an individual is not to violate the law of any jurisdiction and is not to possess a firearm. The specific conditions are listed in the rules of supervision or conditional discharge. Things like evaluations, counseling, public service, fines and costs are established in writing. Many of these things are also laid out in probation orders, but Probation Officers do have more flexibility to require conditions. Even this discretion is limited to the content of the orders (a Probation Officer cannot have you mow their lawn).
If there is a violation of rules or a failure to comply with conditions, you face the court again. All violations, however technical in nature, can subject you to facing resentencing under the guidelines of the original charge as all violations equally violate the sentence. You may have a hearing to determine if you violated the sentence, and the state must prove the violation was willful on the defendant’s part. This proof is not required to be beyond a reasonable doubt, as is a trial, because the defendant carries no presumption of innocence. At this hearing the proof must be by a preponderance of the evidence only (essentially that it is more likely than not the violation occurred willfully).
If the determination is made at hearing or after admission the defendant violated the sentence, the defendant is resentenced. This is where differences in violations come into play. For instance, commission of the same crime again is treated more harshly than say, missing a night of curfew. This is a generalization but it is a good one. Everyone should note that there is no set guideline in the law about the value of any given violation.
This sentencing does open you up to getting the maximum, but the truth is that the majority of violations I have handled over the years result in a continuation of probation and some punishment (such as more jail or public service) or additional services (like additional counseling or drug testing). Every case is different, just like each violation is different, but few people are sentenced to the maximum penalties for an offense after a single or first violation.
It is the overall exposure which makes me urge people to seek counsel for violations. It should be treated as carefully if not more than the original charges in court. You have the very right to counsel at the violation hearing and sentencing you did prior to trial or plea on the case, and you should take advantage of this right. For more information please go to my website which provides examples of the treatment of violations in different courts - www.brucarandyetter.com