Written by attorney Elmer Sanchez | Jun 15, 2012

Violations of Probation and Community Control

If you or a loved one has been charged with a Violation of Probation (VOP) or violation of Community Control, it is important to speak to a defense attorney as soon as possible. A charge of Violation of Probation or Community Control is a serious matter, and the faster it is addressed, the better. As attorneys, one of the first issues arising out of a VOP is getting our client out of jail. Many times, a defendant charged with a VOP is given a no bond status. If a defendant is being held in jail without bond, the attorney may be able to obtain a hearing to request that a bond be set so the defendant can be released. When a violation of probation is filed by the probation officer, the defendant may be sentenced to the original, full amount of jail/prison time for that charge, if convicted. For example, a defendant charged with a VOP resulting from an initial charge of a first-degree misdemeanor, can face a maximum jail sentence of one year. Similarly, a VOP for a third-degree felony can result in a five-year prison sentence. The decision of guilt is made by a judge, not a jury. Moreover, the burden of proof is less than the State would have to prove at trial. In a VOP setting, the court only has to find that a violation occurred by a "preponderance of the evidence." This is a much lower standard than "beyond a reasonable doubt" in a regular criminal trial, and essentially means that the judge only needs to be convinced that it was more likely than not that the VOP was committed.

The reason for the violation also plays a big role in the handling of the case. If a new criminal charge or "new law violation" is alleged as the reason for the VOP,the attorney will need to address both the VOP and the new criminal charges. Sometimes this means handling two cases in two different courts. However, it is critical that the attorney know of the pending new case because a plea to the new charges can have serious consequences for the VOP. For example, a plea to the new charge can be considered an automatic violation. A defendant charged with a VOP should not plea to the new charge or make any statements without consulting an attorney. On the other hand, the reason for the violation may be a failure to complete certain conditions ordered as part of the probation. These are commonly referred to as “special" conditions of probation. Usually, it is best to complete these conditions before the hearing on the VOP. An attorney is able to help evaluate the best strategy for prevailing.

In Summary, if you are facing a VOP, an attorney an attorney will develop the best strategy to manage issues regarding arrest and release; preparing for the evidentiary hearing and sentencing (if convicted).

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