What is probation?
Probation is the suspension of a jail sentence - the person who is “on probation” has been convicted of a crime or placed on deferred adjudication, but instead of serving jail time, has been found by the Court to be amenable to probation and will be allowed to remain in the community. While on probation, the person will have to abide to certain conditions set forth by the Court under the supervision of a probation officer. General conditions may include maintaining employment, abiding to a curfew, living where directed, abstaining from unlawful behavior, following the probation officer's orders and not absconding.
Usually the person on probation is supervised by a probation officer (P.O.) to monitor their performance during the probation period. Typically, a person has to meet with their P.O. on a monthly basis and submit to random drug tests. Community service is usually required, and counseling and classes are often conditions of probation.
Sumpter and González works with clients to ensure that they are successfully completing their probation.
What is probation revocation?
After being placed on probation (called “community supervision” in statutes), the prosecuting attorney may file a "motion to revoke" probation, alleging that the probationer violated the conditions of probation.
Probationers often wrongly assume that a probation officer can “revoke” them. Revocation can occur only after a motion has been filed, served on the probationer, and after the probationer has had an opportunity to defend himself against the allegations in the motion.
The government is then required to prove the probationer violated the conditions of his probation. No jury trial will occur; this hearing is before the sentencing judge. The proof requirement is a “preponderance,” meaning it is more likely than not that the violation happened.
For example, a probationer who was required not to commit any crimes gets arrested for possession of marijuana. The government can win only if it can prove that it is more likely than not that the probationer intended or knew he was in possession of a substance he knew to be marijuana.
The probationer also has many rights at a revocation hearing. For example, probationers can subpoena witnesses and evidence, as well as cross-examine witnesses against him.
If the government proves the probationer violated probation conditions, the case is not necessarily finished; violation of probation does not automatically equal prison or jail. The judge has many options, including extending the length of probation, imposing an additional fine, requiring counseling, and requiring the probationer to submit to drug or alcohol treatment programs.
At its most basic level, most probations are somewhat like contracts between the judge and the probationer. The judge agrees not to imprison the probationer for as long as he could, and the probationer agrees to abide by rules the judge sets. Conditions of probation vary greatly and can even include significant jail time.
Certain technical defenses exist that could prevent revocation, even when violations have occurred.
This description is not meant to make probationers comfortable when a motion to revoke is filed against them, but it is important that the probationer not lose hope. A qualified attorney may very well be able to provide valuable assistance and help a probationer avoid a revocation of probation.