If you were convicted of a crime and placed on probation (in lieu of serving a jail sentence) you have probably discovered that being on probation can be difficult in Johnson County. Depending on the crime you were convicted of and the jurisdiction you were charged in, probation can be difficult to follow. Probation can range from a simple non-reporting, “stay out of trouble for a year,” all the way to multiple meetings, counselling, drug tests, classes and a host of other rules and obligations. Knowing the ropes about your probation before you sign up can be crucial to your success or failure. That being said; what happens if you violate?

If you violate the terms of probation many different scenarios can take place. Here are the common steps for a criminal case involving a probation violation.

  1. Defendant gets convicted of crime.
  2. Judge sentences the defendant to a jail sentence but allows them to be on probation to avoid jail time.
  3. Judge reads the terms and condition of probation to the defendant or defendant signs a probation contract. Judge may assign a probation officer to look after the defendant.
  4. Time elapses and defendant may violate the terms of the probation.
  5. Prosecutor files motion to revoke probation and lays out the alleged violations in the motion and asks the judge to put the defendant in jail.
  6. Defendant hires a lawyer to help with the motion.
  7. Lawyer decides if there was a violation. If there was, lawyer talks with prosecutor to try to resolve the issue. If the issue cannot be resolved a hearing is scheduled.
  8. Judge has hearing and decides if prosecutor can prove a violation occurred.
  9. Judge decides what to do with the defendant if he finds a violation. If no violation defendant stays on probation.

Every violation of probation does not result in a revocation and the defendant going to jail to serve their jail sentence. In fact, more often than not a violation of probation will not result in a defendant being sentenced to serve their full jail sentence. If the defendant hires a lawyer and follows the advice of their lawyer, jail time is often avoided or at least minimized. Here are couple of common ways that a violation of probation works out.

  1. Prosecutor never files a motion to revoke because they never discover that a violation occurred. Depending on the type of probation you are on and the jurisdiction you are in, this is pretty common. Obviously, you are taking a chance anytime you do something that is a violation of the terms of your probation. It is always the safe play to adhere to the terms and conditions.
  2. Prosecutor never files a motion to revoke because the violation was a minor violation and you worked it out with your probation officer. This is very common if the violation is not very serious. This comes up often when you miss a meeting with your probation officer but you call him or her and let them know why you missed or you have a diluted UA but you have not had any positive UA tests. In this case a probation officer may give you a sanction like attend a meeting or take another UA. It is common to get an internal sanction but you should never count on receiving an internal sanction. Some officers give internal sanctions often, some officers do not.
  3. Prosecutor files a motion to revoke to get you to perform some task then withdraws the motion after you have completed the task. This happens in some jurisdictions depending on who the prosecutor is. This is common whenever you have been good on probation but you simply haven’t completed a task you were ordered to do. Usually this happens when you haven’t paid your fines. The prosecutor will file the motion and then you will fix the problem, (pay your fines) and then the prosecutor will withdraw the motion. Do not count on this in all jurisdictions, some prosecutors are not as understanding as others.
  4. Prosecutor files a motion to revoke for a major violation and wants you to pay a price. This occurs when the prosecutor believes that you have broken probation in more than just a trivial way. These violations include: getting charged with a new crime, having a positive drug screen, not showing up to multiple meetings with your probation officer, et. Cetra. When this happens, there are several possible courses of action:
    1. If you don’t believe that the prosecutor can prove the violation then you set the case for hearing and argue to the judge they have not met their burden.
    2. If the prosecutor can prove the violation, your lawyer will talk to the prosecutor and try to work out a deal if you stipulate (agree) to the violation. Depending on the violation and prosecutor these are common scenarios:
      • Stipulate to the violation and revoke the probation then reinstate the probation. This gets you a second chance without adding more time to the probation and without going to jail.
      • Stipulate to the violation and revoke the probation then reinstate the probation and extend the term of probation. This keeps you out of jail but adds some time to your probation.
      • Stipulate to the violation and revoke the probation then reinstate the probation after a sanction is performed, like a weekend in jail. This keeps you on probation and punishes you for the violation but it doesn’t make you serve your full sentence.
      • Stipulate to the violation and revoke the probation but modify the sentence or how you serve the sentence. This is for people that do not want to be on probation or are a bad candidate for probation. This takes you off probation but keeps you from having to serve the entire sentence in jail. In these cases, you may serve some time on house arrest in lieu of jail time and then the case is just closed after you complete the house arrest sentence.
      • Stipulate to the violation and modify the sentence to a lesser punishment than your underlying sentence. This is for serious violations or when the defendant is in custody on another case. This keeps you from doing your full sentence.
      • Stipulate and do your time. This is rare and you usually only do this when you are serving time on another case and that time exceeds the underlying sentence in the probation case.

There is a lot to know when it comes to probation violations and how to handle them. The criminal defense lawyers at Roth Davies have extensive experience handling these matters in all Courts in Johnson County including Overland Park, Shawnee, Mission, Merriam, Lenexa, Olathe, Gardner, Westwood, Prairie Village and all other municipalities in the Metro. If you need help call for a free consultation.