To answer this question effectively you first need to understand a few things about what probation is and how it works. Not all people are placed on probation when they are convicted of a crime, some go to jail or some may just pay a fine. It largely depends on what crime the person is convicted of and their criminal history. When a judge determines that the crime committed was not one in which he or she wants to immediately punish the person by putting them in jail a judge will usually decide to put the person on probation.

When a defendant is given probation three things always happen.

  1. The defendant agrees to be subject to rules and conditions of probation.

  2. The defendant is sentenced to an underlying jail sentence.

  3. The defendant is told that if they violate the rules and conditions of probation they are facing going to jail for the underlying sentence.

Every time a person is facing a revocation of probation it is going to be alleged that the person violated the terms or conditions of probation. Many times people do not pay attention to the conditions and rules of probation and that is why they end up violating them. It is very common in Kansas when a person is on probation that they are subject to some or all of the following rules:

  1. Pay fines and costs associated with the case in a proscribed manner.

  2. Attend all court dates associated with payment of fines and costs.

  3. No use of illegal drugs or alcohol.

  4. Defendant must submit to random drug and alcohol test and pay for such tests.

  5. No contact with a victim or witness in the case.

  6. Not returning to the scene of the crime. (Mostly in theft cases)

  7. Report to a probation officer as directed by the court.

  8. Obtain a drug and alcohol abuse evaluation and comply with the recommendations. (Usually on drug and alcohol related cases)

  9. Clear any warrants within 30 days of being granted probation and remain warrant free.

  10. Inform your probation officer within 72 hours of any new arrest.

If a person placed on probation violates the terms of the probation or the prosecutor believes that the defendant violated the terms of the probation then the prosecutor will file a motion to revoke probation. Once a motion to revoke is filed then the defendant has the ability to hire an attorney to represent them when the motion to revoke is heard by the court. The defendant is entitled to a hearing on the motion and for a judge to make a determination as to whether they have violated the term or conditions of probation.

Once the motion is filed there are four common ways of resolving the case. Below are the possible ways.

1. What happens if you go ahead and have the Revocation Hearing?

If you put on the hearing the prosecutor will call witnesses or present other evidence to the judge to try to prove that you violated the terms of your probation. Before the judge can revoke your probation he or she must find that proof was admitted to convince him or her that you more likely than not violated the terms of the probation agreement. If you put the hearing on there are many different possible outcomes, here are a few examples. 

The judge can make a finding that the defendant has violated the terms of probation and remand that defendant to serve their sentence.

The judge can make a finding that the defendant did not violate the terms of their probation and let them continue their probation as previously granted.

The judge can make a finding that the defendant has violated the terms of probation, revoke that probation, and then reinstate probation possibly with some additional time or some additional conditions.

The judge can make a finding that the defendant has violated the terms of probation, revoke that probation, give the defendant an appropriate sanction for the violation (send them to jail for a weekend, put them on house arrest, et. cetra) and then reinstate probation possibly with some additional time or some additional conditions.

2. What happens if the Prosecutor withdraws the motion to revoke probation?

This is one of the least common results to a motion to revoke. This occurs when the prosecutor no longer can prove that the defendant violated the terms of the probation or the prosecutor decides not to pursue the revocation for some other reason. In most cases where the prosecutor decides to withdraw the motion it is because the defendant fixed the problem that was causing the violation. The most common example is if a defendant is getting revoked for failure to pay timely but then gets caught up on payments before the revocation hearing a prosecutor may just withdraw the motion to revoke.

3. What happens if you “Stipulate” to the violation?

In some cases, your attorney can speak with the prosecutor before the hearing and try to work out some agreed upon recommendation. This is usually referred to as a stipulation. If the facts that caused you to get a motion to revoke are clear cut, a stipulation may be in your best interest, especially if there is a joint recommendation that you can live with. Here is an example. If a defendant was placed on probation for drug possession, then violates the terms of the probation by having multiple positive urine analysis tests while on probation. The prosecutor then files a motion to revoke the probation based on drug use while on probation. The defense attorney may strike a deal for a “stipulation” to the motion if the prosecutor agrees to reinstate the defendant’s probation if the defendant completes a drug and alcohol class. In this case, the judge never hears about the multiple violations of probation. The judge will just hear that there was an allegation of drug use and the defendant admits to the use and accepts responsibility. The judge will also hear that both sides of the case agree that the defendant needs drug and alcohol counseling and recommend that the judge reinstate the probation and order the defendant to complete the class. In this case the judge will be more likely to follow the recommendation as opposed to revoking the defendant’s probation and putting him or her in jail.

4. What happens if There Is A Stipulation With A “Sentence Modification?”

All probation violations are not created equal. Some are particularly bad. In some cases, a defendant will have had their probation revoked more than once or violated their probation by committing a new crime very similar to the one they were placed on probation for or some other difficult situation. When this happens and the facts of the revocation are clear cut, a lawyer may look for a sentence modification. If the defendant has exhausted the patience of the prosecutor and they want the defendant to serve the underlying sentence a lawyer’s last resort can be to ask for a sentence modification. Here is an example. Defendant was placed on probation for drug possession with 180-day underlying sentence, then half-way through their probation defendant has a positive urine test for drugs. At the revocation hearing the defendant strikes a deal with the prosecutor to attend drug counseling in exchange for a recommendation to reinstate probation, of which the judge grants. A couple of months pass and the defendant gets picked up for a felony drug case and is sitting in custody waiting on that case to move forward. The prosecutor files a motion to revoke the defendant’s probation based on the new drug case. During the course of the felony case a deal gets worked out for probation on that case and the defendant has a release date 30 days in the future. In that case, the lawyer working on the revocation could have the defendant stipulate to the revocation of probation on his misdemeanor case if the prosecutor would agree to modify his sentence from 180 days to a lower amount of time to coincide with the release date on his felony charge. Then the lawyer could ask the judge to modify the sentence. If the judge modifies the sentence it would save the defendant from doing a lot of jail time. Each time a defendant is granted probation they need to take the conditions of probation very seriously. If you are on probation you are only one screw up from being in jail. If you have a problem on probation and are facing a revocation contact an experienced criminal defense lawyer as soon as possible.