Probation Violations and Early Release from Probation:
The below sections discuss what happens when it is alleged that you have violated your probation in some way. As can be seen, that allegation results in some unpleasant actions being taken. One is you may be arrested and held without bond. Another, your probation could be revoked and your original sentence that was suspended being implemented. If it was deferred adjudication, you can be sentenced to the full range of punishment for the offense. The bottom line, if a violation has been alleged and the probation officer files the paperwork to revoke, it is in your best interest to contact an attorney and discuss your options.
Motions to Revoke
A Motion to Revoke (MTR) is usually created by the prosecutor at the request of the probation officer because the defendant has not satisfied one on more conditions of his probation. It is important to point out at this point that a MTR is different from a Motion to Adjudicate. The next menu item covers this situation.
Once a motion is filed it will create a warrant for the defendant's arrest. In many cases, a person will not be allowed a bond but in many cases will. If a bond is set, it will normally be double what the bond was when he was originally arrested on the charge.
Once the defendant is arrested, he has a right to an attorney and a right to a hearing termed a Revocation hearing. This hearing is before the same court where the defendant was originally put on probation. The judge will, after hearing the evidence from the prosecutor and the defendant, makes a decision on the action to take.
The outcome could be that the defendant is continued on probation with no further action, is sanctioned (ie this means in many cases he will have spend some time in jail), then continued on probation, or his probation can be revoked and he will have to serve his time in the appropriate jail (county, state jail, or penitentiary.
The time that will be spent could be the full sentence that was negotiated at the time the original case was adjudicated (ie concluded). For example, if you were sentenced originally to 6 years and it was probated for 10 years, you are subject to being sentenced to 6 years. This is even though you may have completed 9 years of probation. Many times, however, an attorney can negotiate the jail time down a considerable amount.
It is very important to retain an attorney when a MTR if filed. He will look to see why the motion was filed and will negotiate with the prosecutor and the probation officer to try to get you through this with minimal impact on your future. If a deal cannot be worked out he can schedule and conduct a revocation hearing to force the prosecutor to prove that you violated the alleged conditions. This gets more information in front of the judge for him to make a decision.
If you admit that you violated a condition or conditions of probation, this is called pleading true. If a deal cannot be worked out with the prosecutor, you can go “open” to the judge. This is a hearing that your attorney schedules where you plead true to one or more of the conditions the probation department is saying you violated and evidence is presented to try to get the judge to give you a better deal than you could have gotten from the prosecutor.
Motions to Adjudicate
A motion to adjudicate is usually filed by the prosecutor at the request of the probation officer because you violated one or more of your conditions of probation. It is termed a motion to adjudicate because when you were put on this type of probation, the judge told you that he had sufficient evidence to find you guilty but was deferring (putting off) convicting you and that if you completed the probation, the case would be dismissed. This was a way to avoid a conviction. If the case is ultimately dismissed, you may be able to get the record sealed. See the section in this website on sealing records for more information in that area.
There are several very significant differences between a Motion to Revoke (MTR) and a Motion to Adjudicate (MTA). The main difference is that in a MTA, you could be subject to the full range of punishment for the offense. Assume a person was put on deferred adjudication probation for 10 years for aggravated assault with a deadly weapon. This is a second degree felony carrying up to 20 years in the penitentiary. Assume the person violated one or more conditions after completing 8 years and a MTA was filed. He would be subject to being sentenced up to 20 years in the Pen. Whereas, on straight probation (ie non deferred adjudication) he would be facing at the maximum the amount of time he was sentenced to jail when put on probation. For example, on a second degree felony he is sentenced to 5 years probated for 10 years. If his probation is revoked, the maximum time he would face would be 5 years.
It is strongly suggested you hire an attorney if a MTA has been filed on you. There are lots of technicalities that could have a very significant impact on the outcome of the case.
Unlike a MTR, a person does have a right to a bond on a MTA.
Several things can happen after a MTA is filed and after you are arrested. You may be kept on probation with no further action, you could be adjudicated (convicted) and put back on probation, you could be sentenced to jail and this could up to the full range of punishment for the offense. You also have a right to a revocation hearing if you feel you did not violate the condition(s). If you win, you may be kept on probation. If you lose, you may be sanctioned (do some jail time or something else) and put back on probation, or convicted and put back on probation, or convicted and sentenced up to the full range of punishment for the offense.
As mentioned above, the main danger in a MTA is that you could be sentenced up to the full range of punishment. This would also result in a conviction on your record that will stay there forever.
Although not necessarily associated with a probation violation this may be a good place to discuss the possibility of getting off of probation early since we are discussing the subject of probation.
A person that is placed on probation, either regular or deferred adjudication probation may be eligible for early release. If the defendant has completed everything he was ordered to do when he was put on probation, he can hire an attorney and file a motion for early release.
The judge does not have to grant early release. It is totally at his discretion. It depends on the type of charge, the person's background, how he has done while on probation, and other factors. One key factor is the amount of time he has been on probation and whether it is straight probation or deferred adjudication. On straight probation he would have to do at least a third of the probation before he could file the motion.
On deferred adjudication probation, there is no minimum time prior to requesting early release.
If a defendant finds he has done everything he was ordered to do and is simply reporting to the probation officer, he should strongly consider getting an attorney and trying to get early release.
There are a number of benefits that come with early release. The first and most obvious is that he is not under the thumb of the state. In other words, his liberty is not restrained by having to check in with a probation officer, take drug tests, and so forth. Another less obvious benefit is that if he is on deferred adjudication probation, he may be more quickly eligible to have his record sealed. Another benefit is financial. Probationer's usually pay around $60 monthly to the probation officer during the period of probation. Getting early release saves this money.
If you are on probation, call us at 972-722-0887 or text us at 972-814-7318 to setup a free phone consultation to discuss your situation. You may be eligible for early release and may indeed be released from probation.
Lastly, if you are on probation and nearing completion, you might want to read the section called Set Asides in this web site. That section discusses the possibility of getting your conviction set aside and your rights restored. This is something that has to requested prior to your probation terminating, or at least no more than 30 days after completing probation. Read the section and if interested call us and we can discuss it.
AGAIN, BITE THE BULLET AND HIRE AN ATTORNEY. He will know the do's and don't's to get you through this with minimal impact on your future.