Most misdemeanor and felony sentences include a period of probation. A judge has decided to allow a person to serve part or the entire sentence outside of jail or prison under conditions the court imposes. Violations of these conditions will result in incarceration.
Judges consider probation a privilege. If a probation officer issues a warrant for an alleged probation violation then you are required to appear before the judge who sentenced you on your original charge. If that judge finds that you have violated probation by a preponderance of the evidence, then he or she will revoke or modify a defendant’s probation.
Parole is determined by our parole board and its guidelines. This is a branch of the Georgia’s Department of Corrections. On most cases where a person is placed in prison there is a chance for parole. Our parole board has unfettered discretion when determining whether or not it will release a prisoner early. There is no science to parole violations. The guidelines are persuasive, but not dispositive.
Our firm creates a parole package highlighting all of the positives of an inmate. We represent the client at the hearing. If the client is granted parole he/she will have terms and conditions similar to probation.
Important: Unlike probation a violation of parole gives the parole board the ability to revoke the entire parole balance. If a person is released on parole and violates his/her parole it also gives the court the option of violating his/her probation if he/she was sentenced to time to serve.
Importan Concepts and Procedure for Parole
Unlike being charged with a crime probation violations do not afford a defendant the same types of constitutional rights they receive when he or she faces a new criminal charge. The presumption of innocence, the burden of proof beyond a reasonable doubt, and the right to a jury trial do not exist for probation violations.
Violations begin with a warrant (usually a no bond warrant) followed by a hearing and finally a sentence. A person must be served with a petition stating the violations for probation. Probation officers have tremendous power in handling a person’s probation. They seek warrants for violations ex parte (this means without an opposing party). People can sit weeks or even months before a revocation hearing occurs.
Different Types of Violations
There are several different types of violations. The most common is a technical violation. This means the person has failed to complete a standard condition for probation. The most common technical violation is failure to report. If a person does not report he or she has violated his probation. This sounds pretty simple, but probation officers have a high rate of turnover and have huge caseloads. This means report until you have something in writing to tell you otherwise. If you arrive and they say you can leave, your probation officer has changed or is not available, get something in writing. Technical violations can carry up to two years incarceration.
A new crime or offense is another common violation. If you commit a new offense while on probation the judge can revoke up to two years for a misdemeanor and the maximum amount of time for a new felony. The final type of violation is a special condition. This type of violation allows a judge to revoke the balance of your probated sentence. Special conditions require the court to state in the order the actual special condition and that the special condition allows the court to revoke the balance of the sentence in confinement. Many people spend more time in jail on a probation violation than they do on the original charge itself.
Defenses to Violations
Many probation and parole officers act outside the scope of their authority. They have to adhere to the judge’s sentence, but they sometimes do not. They can’t simply make up their own terms. We have found probation officers who have decided, “this is how he or she is going to do it.” They are not judges but agents of the court with limited authority. These officers are forced to handle too many cases due to budget shortages. It can be difficult to communicate with them and they are under a lot of pressure to collect fees for the State and private companies.
A high rate of turnover exists in many of these offices and a Defendant may be reassigned several different times during his/her probation period. It is also important to know the U.S. Constitution and Georgia’s Constitution do not allow debtors prisons (we don’t put people in jail because they can’t pay fines or fees Important: Fines and fees are different than restitution if your probation involves repayment of restitution and you cannot pay it then this is a violation). Probation officers don’t take this approach. They are under marching orders to collect fees. A probation officer does not have a law degree and in many cases his or her interests are in conflict with the court.
The advantage of having a person unfamiliar with the law can result in technical mistakes on behalf of the State. Many times a petition for a revocation will not state an actual violation or will not state an actual crime. In many cases a witness will not be properly subpoenaed or a piece of evidence will not be allowed into evidence for lack of foundation.
First Offender Probation
A first offender plea is a double-edged sword in Georgia. If a person successfully completes their sentence then he or she will not have a conviction on their record, but if he or she violates the terms of their sentence, then the court has the option of reopening the case and resentencing the individual. For example if a defendant pleads under Georgia’s First Offender to the charge of possession of cocaine and receives three years probation, then any violation of his/her probation will allow the court to negate the person’s sentence. The court can resentence the Defendant to the maximum sentence allowed under Georgia Law for the charge. In this example the Defendant could receive 15 years in prison. We always caution our clients on what the pros and cons of a plea under first offender entail. Most first offender pleas carry more risk than regular pleas.
What We Can Do to Help
In addition to legal defenses to violations, professionalism and relationships with probation and parole officers are very important in obtaining good results for clients. We have worked with every probation office in Atlanta and its surrounding counties and the parole board. We are able to plead our client’s case, and offices respond to our calls. The most common complaint we here from Defendants is they could not get in touch with their probation officer. We understand this and Judges understand this, rather than scalding the officer we approach them in a diplomatic way. If it is a misunderstanding or breakdown in communication we can save our clients substantial jail time.
A judge makes the final decision on sentence. When an offer is unreasonable it is our job to show the judge assigned to the case why the violation and recommendation are unreasonable. Finally we will make them prove the violation. A person on probation often wears a proverbial Scarlett Letter. A probation officer may simply not like an individual and will look for any excuse to revoke the individual. Sometimes these are not real violations or they cannot be proven.