Question 1: What is probation?. 1

Question 2: What is a probation violation?. 2

Question 3: Can my probation be revoked for a new arrests before my trial on the new charge?. 2

Question 4: Can I get bond on Probation Violation case pending my hearing?. 3

Question 5: Do I have a right to attorney?. 3

Question 6: Do I have a right to know why I am being charged with violating my probation prior to the probation revocation hearing?. 3

Question 7: What is a Probation Revocation Hearing?. 3

Question 8: Can my case be resolved before the revocation hearing?

Question 9: What are the possible sentences for violations of probation?

What is probation?  Well, the actual word probation roughly translates “to prove yourself” in Latin.  This is in practice what probation is in our criminal justice system.  Probation is a way for a defendant to prove to the court that he will obey the law if allowed to stay out of prison.  If you read an actual criminal sentence when someone is put on probation it clearly states what probation is.  When a Judge puts defendants on probation the Judge is in fact sentencing that defendant to incarceration but suspending that sentence of confinement and placing that defendant on probation instead.

Put into everyday English, what the Judge is really saying when he puts a defendant on probation is:  “I am going to give you a chance not to be locked up but you have to follow my rules and stay out of trouble.  If you violate the law or don’t follow the instructions of your probation officer I will lock you up.”

Of course, not all probation is the same.  For misdemeanor offenses, probation can be way to collect fines.  For example, if you get a speeding ticket and cannot pay the fine at the time of your court date, probation can be the mechanism whereby the Court collects fine money.  For more serious misdemeanor offenses, probation is way for the court to ensure that defendants complete mandated courses such as driver safety or DUI school and complete court ordered community service.  In Georgia, misdemeanor probation is often administered by private companies that contract with local government to supervise probationers.

In Georgia, felony probation officers are State employees.  These felony probation officers have arrest powers and wide authority to enforce the rules of probation.  Violating felony probation is a serious offense, which can land a probationer in jail or in a state probation detention center.  For serious violations of probation, a Judge has the power to revoke a probationer’s full sentence and send that defendant to prison.

There is not one answer to that question.  Below are the most common reasons for a probation violation.

Failure to Pay Fines

Most people placed on probation are ordered to pay fines.  Failure to pay those fines can lead to a probation violation.  Failure to pay fines alone will not usually result in a probation violation arrest unless the probationer is wilfully refusing to pay fines and yet has to money to pay.  If a probationer is unable to pay fines due to inability caused by a new medical issue, disability or other valid reason then he should request a modification of probation from the sentencing court. Under no circumstances should the probationer not report to probation due to inability to pay.  Failure to report is much more serious probation violation then mere inability to pay fines.

Failure to Report

All probationers must report to a probation officer unless specifically allowed to be on unsupervised probation.  There are no exceptions to this rule and failure to report due to fear of a probation violation for some other cause will only create more problems for the probationer.

Failure to Comply with Special Conditions

Some probationers will be required in addition to paying a fine to complete other special conditions.  Examples are community service, restitution and attendance at classes such as anger management and so forth.

New Arrests

This is the violation with the most serious consequences. If a probationer is arrested for new offense this will almost always result in an arrest for probation violation.  If arrested for a new offense the probationer should report the arrests to his probation officer and failure to report the arrests is in itself a violation of probation. The probation officer will find out regardless about any new arrest so honesty is the best policy.  If you are arrested for a new crime and are on probation it would be wise to consult with an attorney as well.

The consequences for a new arrests will vary based on the nature of the new arrests.  For example, of course a violation based on a misdemeanor will usually have less serious consequences than an arrest for a felony.

Yes, you can be arrested for a probation violation before your trial on the new charge which is the basis for the probation violation.  In fact, in some circumstances you can be prosecuted for probation violation even if the new charge is dismissed prior to trial.

Unlike most new arrests you do not usually have a right to a bond pending a probation revocation hearing.  However, your attorney may petition the court for a bond and request a hearing on the bond motion. However, the court will in most circumstances deny bond for probation violations.

Yes, you have a right to an attorney in a probation revocation hearing and right to Due Process of Law.  If you are unable to hire an attorney you can request a public defender to represent you at probation revocation hearing.  However, if you are able to hire an attorney then you should do so as soon as you know you will be facing a probation revocation and if possible before your arrest.

Yes, the State will prepare a “Petition” to revoke your probation and outline the reasons for your violation.  Your attorney will be given a copy of the Petition prior to the hearing. Due Process requires that a defendant be given written notice of a claimed violation of his probation prior to a probation revocation hearing.

If you are charged with a violation of process Due Process requires that you be given an opportunity to be heard. At the hearing you may either represent yourself or be represented by an attorney.  In Superior Court, the hearing will be presided over by a Judge with a court reporter present. The State represented by the District Attorney with the help of a probation officer and any other relevant witnesses will present its case that there has been a violation of probation. The Defense attorney has a right cross examine and present witnesses. After both sides preset their case they may make closing arguments.

The Judge will then decide whether there has in fact been a violation of probation based on the evidence presented.  If the Judge finds that the defendant has violated probation then the disposition or sentence will be given.  The defendant may ask to speak prior to sentencing and even have family, friends or other speak on his behalf before sentencing.

Sometimes, the defense will waive its right to a hearing on the facts and admit a violation of probation.  The Judge will then allow the defendant to speak and hear testimony from family, friends and others on the defendant’s behalf. This kind of hearing is usually called a “disposition” hearing.

Remember, you do not have a right to jury trial in probation revocation hearings only a hearing before Judge.  This is often referred to as a “bench trial”. However, you do have the right to Due Process and the burden is still on the State to prove you violated your probation.

Yes, like most criminal cases a probation revocation may be resolved by a “plea offer”.  In practical terms, this means your attorney and the prosecutor work out a “plea deal” prior to your hearing.  Any such plea deal must of course be communicated to and be approved by the defendant.

Sometimes, a plea offer can reduced to writing in the form of a “consent order” in which both sides sign the order which is then presented to the Judge for approval and signature.  When a “consent order” is done the defendant will usually not have to appear in court.

With that said, the prosecutor is not obligated to make a “plea offer” and is of course sometimes not willing to make an offer acceptable to the defendant.  Therefore, if the defendant does not accept the “plea offer” the only alternative will be to have either a full probation revocation hearing on the facts or at least a disposition hearing.

Generally, two years incarceration is the maximum revocation period for technical violations and misdemeanor violations. More serious violations may result in part or full revocation to prison. Below are possible types of sentences.

County Jail – The Court may sentence a defendant to serve up to 12 months in the county jail.  The defendant may be eligible unless otherwise ordered by the court for “good time” or “two for one time” at the discretion of the Sheriff for good behavior.

Probation Detention Center –  The Court may sentence a defendant to serve up to 6 months in the Probation Detention Center. There is a wait for bed space but the defendant may be given credit from the date of the order.

RSAT – Basically, this is a probation detention center focused on giving the defendant’s drug rehabilitation services. Usually there will be a wait for bed space during which time the defendant will be held at the county jail unless otherwise ordered by the court.

Prison – The Court may revoke the defendant’s probation in part or in full to prison. The defendant will usually be eligible for parole.

Special Conditions – The Court may order the defendant to comply with additional special conditions such as attendance in a private drug rehabilitation program, drug screens, anger management or family counseling and so forth.

Note:  The Court may sentence a defendant to a combination of the above.

The above is a very basic overview of commonly asked questions in probation revocation cases.  All cases are different and a defendant should always consult an attorney.