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Probation

Probation Revocations ▪Revocation Hearings ▪Probation Officers ▪Modification ▪Supervision

 

Probation is a type of sentence, where defendants are usually free to live at home and go to work.  It is supervised or unsupervised, and has number of conditions.  One condition of probation can sometimes be a jail term.  Under state law, the term can be no longer than 60 days straight time for a misdemeanor, or 90 days straight time for a felony. C.R.S. § 18-1.3-202(1).

 

Probation can be revoked if the Court determines you are in violation of any condition.  If your Probation Order has a “no alcohol” condition, some judges will find you to be in violation if you use a mouthwash with alcohol in it.  Really. I have seen it happen.  Click to view the pages listed below.

 

 

Revocations

When your sentence includes probation, it is amazing how easy it is to violate that probation.  You need do nothing and that probation can be violated.  Since that probation came after a plea or jury verdict of “guilty,” there will be no trial now. There will be no jury to which you can appeal.  If you have evidence that would have helped you at trial, but it wasn’t presented, it matters little.

 

Still, there are things that can be done.  The longer you wait, the more likely you are to spend time in jail.  You may even have to serve a sentence in prison.  In addition, you may be arrested prior to a revocationhearing.  Your offense may be very minor.  You were not looking at jail.  Still, upon a revocation of probation, you may now have a jail or prison sentence with which to deal.

 

If your probation is revoked, C.R.S. § 16-11-206(5) gives the court the power to sentence you to anything, ANYTHING you may have gotten originally.  That includes years in jail, or years in prison.

 

Don’t wait.  If a sentence to probation is about to be revoked, call in all the help you can find.

Revocation Hearings

Probation revocation hearings are conducted according to C.R.S. § 16-11-206.  Here’s an abbreviated look at the controlling statute.

 

(1) At your first appearance in court, the Court must advise you of your limited remaining rights.  You have already been convicted or waived your right to a trial and pleaded guilty. “There shall be no right to a trial by jury in proceedings for revocation of probation.”


(2) At or prior to the commencement of the hearing, the court shall advise you of the charges against you and the possible penalties that you may face.


(3) At the hearing, the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation.  That’s “more likely than not” or 51% sure.

 

Except:

 

In cases where the commission of a criminal offense is the reason for revocation, proof of your guilt of the crime must be established beyond a reasonable doubt, not “more likely than not.”  Usually, the revocation case is continued until a verdict or plea in the new criminal case.  Then, you face punishment for the new case and punishment for the revocation of probation. When, in a revocation hearing, the alleged violation of a condition is your failure to pay court-ordered compensation to appointed counsel, probation fees, court costs, restitution, or reparations, evidence of the failure to pay shall constitute prima facie evidence of a violation..


(4) If you are in custody, the hearing shall be held within fifteen days after the filing of the complaint, unless delay or continuance is granted by the court at your request or for other good cause found by the court justifying further delay.

(5) If the court determines that a violation of a condition of probation has been committed, it shall, within five days after the said hearing, either revoke or continue the probation. If probation is revoked, the court may then impose any sentence or grant any probation which might originally have been imposed or

granted.

Probation Officers

From what defendants relay to me, either Probation Officers are ignoring your right to DUE PROCESS or people are terribly misunderstanding what they say.

Here’s what Probation Officers can do, and what they can’t:


  • On Probation Revocations

If they say:

“I’m revoking you”

In reality, it means:

“I’m going to ask the Court to revoke your probation at a hearing next week.”

 

You are entitled to a hearing before a judge before you probation is revoked.  Only the Court can revoke your probation.  The probation officer cannot.  That said, most Courts will follow the Probation Officer’s findings, so a threat of  “I’m revoking you” will likely result in a revocation.  Just not immediately.

But:     get help now. A revocation can be fought.  Even if probation is revoked, it may be possible to get a new period of probation.  The result is often no time in jail.

 

  • On arrest warrants

If they say:

“I’m putting out a warrant for your arrest.”

In reality, it means:

“I’m going to ask the Court to issue a warrant for you.”
 

Like Probation Revocations, arrest warrants are something the Court can issue, but Probation Officers cannot.  If they mail you an Arrest Warrant that is not signed by a judge, it is not a valid warrant but a threat.  Often, the judge will sign and grant the arrest warrant, so the threat soon becomes very real. .  Just not immediately.

 

  • On a Probation hearing summons
     

If they say:

“I’m giving you a summons.  Be in this Court at this time, or an arrest warrant for you will be issued.

In reality, it means:

The same thing. 

 

Probation officers can issue a summons for you to appear in Court.  You must be there or a bench warrant will be issued for your arrest.

Modification

The Court can modify your probation upon your request or motion.  The Court has the power to do that, but it is not required to do that.

 

If the Court granted you supervised probation, you can move the change it to unsupervised probation.  The difference is the Probation Officer and the payment for supervision.  On unsupervised probation, you will not have to meet with a Probation Officer.  You also won’t have to pay for probation supervision.

 

We can also move the Court to modify other requirements of probation.  Remember, until the Court changes your conditions of probation, they are still in effect.  This is true even if victims, employers or probation staff tell you to do otherwise.

Supervision

Whether your probation is supervised or unsupervised is determined by the Court at sentencing.  The difference is, of course, supervision.  But cost is also a factor. 

 

Supervision Costs

  • You need to pay for Probation Supervision.  Two years of supervised probation will cost you over $1,000.  Eight years will cost you nearly $5,000.  Consider this when looking at options which include probation.

Probation Officers

  • What you get in return for your money is a Probation Officer.  Some defendants get along fine with their Probation Officers. Others have very bad relationships with their Probation Officers.  There is an original probation order, which you signed but likely have never read.  In it, is a Condition of Probation which gives your Probation Officer wide latitude in requiring you to do things.  It is the “comply with all orders of the probation officer” clause.  It is wide open, and your Probation Officer may lean on it as authority for the Officer’s various requests.

Unsupervised Probation

 

  • People who have supervised probation will envy those who get only unsupervised probation.  Once you have completed the Requirements of your probation you may forget it is even there, hanging over your head.  But if you are convicted of something more serious than a traffic infraction, you will be quickly reminded of the sentence to probation as revocation proceedings begin.

 


 

This web site is an advertisement intended for informational purposes.  What you learn from the site is no substitute for actual legal advice from Fenaughty & Associates, PC directly.  The tables, charts, statutes and calculators on this site can become incorrect as laws, procedures, jail costs and vendor costs change over time.  Only a signed agreement with Fenaughty & Associates, PC can create a Colorado lawyer-client relationship.