The majority of felony prosecutions are resolved with probation. But when one receives probation, what does it really mean?
FELONY PROBATION
Felony Probation can take many forms. In most counties, you can receive unsupervised probation with compliance monitoring, standard probation, standard probation with specialized caseloads (sex crimes, white collar and gangs to name a few) intensive probation, or interstate compact. When convicted and sentenced for most felonies, a court has the option of sending one to prison, or ordering a term of probation.
Many people believe that probation means no incarceration. If you receive probation, you could receive up to one year in the county jail. Simply stated, probation may result in jail, but not prison. If you violate probation, then prison is again possible.
As additional conditions for felony probation, the court can also order community service, restitution fines, counseling, drug testing, sex registration, financial oversight and many other potential sanctions. The length and terms of probation may be negotiated in a plea agreement, or left to be decided by the judge.
MISDEMEANOR PROBATION
By definition, one cannot go to prison for a misdemeanor. But as a term of probation, you could be jailed for up to 6 months. In most cases, there is no supervising probation officer. Rather, the court monitors compliance. (a few city courts do have probation departments) But just like a felony probationary grant, the court can also impose fines, restitution, community service, sex registration and other potential sanctions. And, like felonies, the terms of probation may be negotiable in plea agreements.
JAIL: WORK RELEASE V. WORK FURLOUGH
If sentenced to prison, you are not on probation. However, you could receive a probation “tail” that would begin upon your release from prison. Regardless of when you serve your jail term on probation, you may be eligible for work release or work furlough. If not immediately eligible, a request for either may be made at the time of sentencing.
Work release is common for misdemeanor convictions. With work release, there is NO oversight. There is usually no verification of employment. Normally the court will permit work release for 5 days a week, up to 12 hours a day. The 12 hours includes travel time. You can’t be late for jail or your privilege will be revoked. When work release is available, you only need to have the court provide a specific order for you to take to jail.
Work furlough is actually ordered by the court, but monitored by probation. You must be employed and approved by probation to participate in work furlough. If allowed to participate, probation actually receives your paycheck, takes their portion first and provides you the remainder.
Even if approved by probation and ordered by the court, the jail may prohibit certain individuals from participating in work furlough: violent offenders, people with medical issues, people with insufficient or the wrong type of employment, and sex offenders. Any issues regarding the terms of probation and work release or furlough must be addressed by your attorney before or during the sentencing phase of your case.
The court is not permitted to tell the sheriff how to house his prisoners. And, if you are not placed into the work furlough yard, you may have an impossible task of obtaining actual release into the work furlough program.
PROBATION VIOLATIONS
When probation believes you have not complied with any term of probation, they will file a petition to revoke (PTR) your probation. When a petition is filed, the court has an option of reinstating the person to probation with additional sanctions, or revoking one’s probation and sending them to prison. When a PTR is filed, you may not be eligible for release from custody until the matter has been resolved.
When a PTR is filed, it is your word versus the probation departments as to whether you violated ANY term of your probation. Some terms are worse than others, but it only takes a violation of one term to send you to prison.
HOW TO PROTECT YOURSELF IN THE FACE OF A PTR
KEEP COPIES: Protecting yourself begins the day you are on probation. Courts make mistakes all the time. It is extremely difficult to prove you have made all payments or attended all classes unless you keep accurate records.
I recommend that you copy ALL paperwork you receive from the day of your sentencing. The paperwork includes your plea agreement, the sentencing paperwork, the presentence report and all probation documents. You need to copy ALL receipts for any payment of fines, restitution and even counseling and drug tests you may be responsible for. In many cases you may receive certificates for completing programs.
The original documents should be filed where you keep your important papers. A copy of everything should be in a Ziploc bag and placed with your spare tire. If you are ever stopped and advised a warrant issued, please remember to have the officer verify the warrant and review your paperwork. Assuming there is no contraband in your trunk, politely request the officer allow you to obtain your paperwork. It may make the difference in being arrested or otherwise not going to jail on the warrant.
COMMUNICATION: Any telephone contact with probation should be by cell phone. In that manner, you will always have a record of your calls and their duration. But you must follow up any contact or request you made by keeping a written log and confirming your contact with probation by letter or email. Believe me…they are keeping records on you. If you don’t have something to support your claims, you will lose your PTR.
Keep a log book with the date and time of calls, the duration, who you spoke with, and the content of the conversation. Any time you obtain permission from the probation officer to do anything, send a thank you note noting the date and time of the request. If any reasonable request is denied, send them a letter indicating the date and time of your request, indicate you will comply with their directive, AND ask them to again explain why they denied your reasonable request. With your probationary term, you will be required to comply with each term.
MAKE PAYMENTS: If the only issue is failure to pay, probation will be required to show you had an ability to pay and you failed to pay anything. At the very least, pay something timely every month and request probation modify your payments. Especially where restitution is substantial, keep track of your income and all expenses. Keep the receipts in weekly or monthly envelopes. The better your records, the less likely you will be revoked.
PROBATION MUST BE YOUR PRIORITY: Other than being in the hospital, there are no excuses for failing to comply with probation. Follow your directives. If you have probation concerns, don’t wait for the PTR to be filed. Please contact me.
Howard Snader is a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any crime, please give him a call at 602.957.3300 or visit his website at http://www.SnaderLaw.com
