Over four million people are on probation in the United States each year. Approximately half of those on probation are on probation for a felony. Each year, approximately 300,000 people on probation are sent back to prison because they violated terms of their probation.
If you are dealing with a probation violation in Massachusetts or another state, you need to understand what you are probably facing when you go to the probation court hearing, and how the judge will decide if you violated the conditions of your probation.
What Can Violate Your Probation?
The following are the most likely reasons people violate the terms of their probation:
- Failure to report
- Failure to pay fines and fees
- Use of drugs and alcohol
- Failure to complete community service
- Associating with people you should not
- Conviction of a new crime
- Commission of a new offense
In Massachusetts, the probation laws mandate a Notice of Surrender to be served upon you if an alleged violation of probation occurred. After you receive the notice, the first thing to be concerned about is the probation revocation hearing. You will probably get a summons from the court, but you might also have a warrant issued for your arrest. (Mass.gov)
Probation Hearing and Sentencing
Probation in this and other states in a type of sentence where you are put back into the community under supervision of the local probation department, rather than having to go to jail or prison. This form of sentence officially removes you from the criminal justice system for the term of the probation. In this time, your probation officer provides oversight of your efforts to rehabilitate. He or she also enforce the conditions of probation that were ordered by the court.
If any action on your part causes the probation officer to think you are in violation of your probation, he will create a Notice of Surrender and submit it to the court. This Notice essentially hands you back to the criminal court system where a judge will decide if your probation should be revoked.
Initial Violation Hearing
The Notice of Surrender provides key information about your probation case, and details the violations of which you have been accused. It also provides the date and time of the initial hearing where you are required to show. Usually, the initial violation hearing will be set within 14 days of the date the Notice of Surrender was issued. You are allowed to ask for a preliminary hearing at this time. But if your attorney does not ask for a preliminary hearing to determine probable cause, the judge can actually put you into custody until your final hearing without any type of due process. It is important to retain an experienced probation violation attorney such as Attorney Geoffrey Nathan to ensure that all of your rights to due process are respected.
Some of the issues covered at the initial probation violation hearing include:
- Verifying your receipt of the Notice of Surrender
- Probable cause determination or preliminary hearing request
- Discretionary detention
- Detention until the final hearing or release on bail or personal promise
- Establishing the date for the final hearing
If a probation revocation warrant was issued by your probation officer, or if another officer in law enforcement placed you under arrest, the Notice of Surrender can be served to you at your first court appearance. If you are charged or indicted on a new criminal defense, this is probable cause of a probation violation and you will not be provided with a preliminary hearing.
Violation Probable Cause Hearing
Unless you have been arrested for a new crime, it is advised to proceed with a probable cause hearing through the county probation court. This is an evidentiary hearing and you should be represented by an experienced probation violation and criminal defense attorney. It is very important for you to get a strong legal advocate to fight for you at these hearings, as it can make or break you getting a dismissal. Your probation officer will be giving his evidence to the judge, and might even bring in a prosecutor to help make their case for probable cause of a violation.
After the judge hears from the probation officer, you and your attorney will be allowed to speak. This is your opportunity to argue against finding any reasons to support the chance that any actions you engaged in were in violation of the terms of your probation. If probable cause is established, there will be a Final Violation Hearing scheduled within 30 days.
Final Violation Hearing
At this hearing, the probation officer has the burden of proof. He must show that you violated the rules of your probation. This is an evidentiary proceeding and your defense attorney will have arguments and evidence to show in your favor. He also can cross-examine witnesses who give testimony against you. If you do not win this hearing, your probation violation attorney can file an appeal to stay the revocation sentence.
At this point, the probation judge can do the following:
- Restore the terms of your probation as they were originally
- Terminate the probation and discharge you
- Extend or modify the terms of your probation
- Revoke your probation and carry out your suspended sentence
If your probation is revoked and you are going to be remanded into custody, your attorney can ask to request time for you to handle your personal affairs before you are sent to jail.
However, bear in mind that often the difference between staying on probation and being sent back to jail is whether you have a strong defense attorney in your corner. With a strong legal advocate at your side, you have a good chance of prevailing.
What To Do Next
Anyone who is facing a probation violation in Massachusetts should seek the counsel of an experienced probation violation attorney. Attorney Nathan is the criminal defense attorney you need for the best result in your probation violation case. For a criminal defense legal consultation, please contact him at (617) 472-5775.
- Court Rules for Probation Violation Proceedings. (n.d.). Retrieved from https://www.mass.gov/law-library/massachusetts-districtmunicipal-court-rules-for-probation-violation-proceedings