Probation is a form of punishment, for people whom the government feels should be punished, but whose crimes were not serious enough to warrant incarceration. People are often unsure as to what exactly probation entails. The general public has the misconception that probation is a mere slap on the wrist and is not to be taken seriously. The general public has many misconceptions about the criminal justice system, but the notion that probation is a joke is probably the most inaccurate perception of all. When you are on probation, your freedoms are restricted, although not nearly as much as they would be if you were incarcerated. Failure to comply with the terms of probation could result in your probation officer requesting the prosecutor to file a petition to terminate probation. The end result is jail time. At any given time, Pennsylvania's county jails are filled with people who violated probation, even for low level non-violent offenses like possession of marijuana and drug paraphernalia.
Probation and parole violations fall into two major categories: 1) new criminal offenses and 2) technical violations. Obviously, the worst thing that you can do on probation or parole is to be convicted of a new offense, and accordingly, your punishment will usually be more harsh for new criminal offenses than for technical violations.
Technical violations of probation or parole entail violating the rules of probation, without actually being charged with a new criminal offense. Some of these rules are not crimes at all, while others are in a grey area. Common technical violations include 1) failure to report for probation appointments, 2) testing positive for illegal or non-prescribed drugs, 3) consuming or possessing alcohol, 4) changing residence without prior approval from Probation, 5) failure to maintain employment or stay in school without a valid explanation, 6) failure to attend drug and alcohol treatment, and 7) failure to make payments towards fines and court costs. A lot of times, probation officers will overlook a few technical violations, but when they continue to accumulate, the probation officer has no choice but to inform the District Attorney's Office and file a violation report.
When you face an alleged probation violation, the first thing that the Probation Department must determine is whether to detain you immediately, or let you stay out of jail until you have a hearing before the judge who placed you on probation. The sentencing judge will decide whether or not you violated probation. If the judge finds that you violated probation, then you would be re-sentenced. A new sentence following a probation violation usually involves a period of incarceration followed by a period of parole. You also lose all of your "street time." Thus, if you were sentenced to 12 months probation and then violate probation in month ten, those ten months of probation you already served are wiped out and you receive no credit towards your new sentence. You must start the process all over again, and you will start this process over again in county jail.
Although probation and parole generally have the same types of conditions, they have some major differences in their applications. "Parole" is the term used for defendants who began a sentence in jail, and were then released prior to the expiration of the maximum portion of their sentence. Thus, if you are serving a six to 23.5 month sentence in county jail, you would likely be paroled after six months. You would then have 17.5 months of parole supervision. When you are returned to jail following a parole violation, you lose all of your "street time." Thus, if you commit a new offense while in month 17 of parole, credit for those 17 months of parole is wiped out. You now face the possibility of serving your "unserved balance" of 17.5 months in jail. The loss of street time can be devastating. If you violate parole, you could end up being in the system far longer than was contemplated by your original sentence, not to mention the fact that you could end up serving your entire sentence in jail, rather than as a combination of jail and parole.
Very seldom does a defendant challenge whether he committed the probation violation. A few years ago, Attorney McClenahen won a probation violation hearing in the Centre County Court of Common Pleas. That case presented an ambiguous situation more commonly found in a trial than in the context of a probation violation. That was such a rare occurrence, that no one could remember the last time a judge ruled that a defendant had not violated probation.
In a typical probation violation case, the usual focus of a probation violation is what the new sentence will be. It is incumbent upon the defense attorney to present as many mitigating factors as possible, or to suggest alternatives, which will lessen a defendant's harm. For example, if a defendant is messing up because he has a drug or alcohol problem, the defense lawyer could advocate for parole into an inpatient rehab facility as soon as a bed date becomes available.
If you or your loved one is facing a probation violation, it is advisable to consult with an experienced criminal defense attorney. Call Centre County Criminal Defense Attorney Matt McClenahen at 814-308-0870 in order to discuss your case.