Probation Violations Lawyers

Probation Basics – What Is Probation?

• Probation is an alternative sentencing option that allows a defendant to serve part, or all of a sentence in the community under the supervision of a probation officer.
• Probation can be ordered in addition to, or in lieu of, a term of incarceration.
  • The sentencing judge actually orders the defendant to serve a period of incarceration and then suspends all, or part, of that time.
  • The suspended sentence is served on probation.
• Probation and parole are not the same
  • Parole can be granted by a Board of Parole
    • An inmate must have served at least the required mandatory portion of his/her sentence before requesting a parole hearing.
    • If granted parole, a parolee remains under the supervision of the Department of Corrections until completing his/her time on parole.
  • Probation is ordered by the original trial court
    • Probation is part of a defendant’s original sentence.
    • The sentencing court retains jurisdiction over a probationer.
    • Probationers are supervised by probation officers who report to the sentencing court.

Probation Conditions

• Probationers will typically have to abide by conditions of probation ordered by the sentencing judge
  • Standard conditions apply to all probationers and include things such as:
    • Reporting to a probation officer
    • Paying court costs and fines
    • Random drug and alcohol screening
    • Maintaining employment or enrollment in school
  • Special conditions may also be imposed and are based on things such as the offense involved and the defendant’s history. Examples include:
    • Substance abuse evaluation and treatment
    • Payment of restitution to a victim
    • Abiding by the terms of a no contact order
    • Completing community service hours

Violating Probation – Types of Violations

• Technical violation – failing to abide by a condition of probation
• • Failing a drug test
  • Failing to complete community service hours
  • Missing appointment(s) with probation officer
  • New arrest – being charged with a new criminal offense
  • A violation can be filed based on a new charge even before being convicted of that offense

Violating Probation – Filing a Notice of Violation

• Governed by Tennessee Code 40-35-311
• Probation officers typically have a good amount of discretion with regard to potential violations. Officer can
  • Issue a warning to probationer
  • Impose additional conditions such as reporting more frequently
  • File an official violation with sentencing court
• If officer files a notice of violation with the court:
  • Court issues an order to appear or warrant for arrest
  • Sets violation for a hearing
  • May have a “no bond” hold until hearing
• Probation officer has authority to arrest probationer once arrest warrant is issued.

The Violation Hearing

• Prosecutor represents the State
• Probationer has a right to an attorney
• Similar to a trial but not as formal and rules of evidence do not apply
• “Preponderance of the evidence” standard used instead of beyond a reasonable doubt which makes it easier to prove a violation.
• If the judge finds that the defendant did violate his/her probation the judge may:
  • Issue a warning and return the defendant to probation with no new conditions.
  • Return the defendant to probation and modify the conditions, for example:
    • Extend the length of probation to allow time to complete a condition
    • Add a condition that the defendant submit to a mental health evaluation
  • “Cause the defendant to commence the execution of the judgment as originally entered, or otherwise in accordance with § 40-35-310.”
    • Defendant can be sentenced to serve any portion (or all) of the original suspended sentence.
    • For example, if the original sentence was 365 days and the defendant served 30 days in jail before starting probation, the defendant could be sentenced to serve the remaining 335 days as a result of the probation violation.
    • A common misconception is that the defendant gets ‘credit” for time served on probation. Not true. The entire portion of the suspended sentence that has not been served already remains “hanging over” the defendant’s head and can be ordered to be served for a violation of probation.
    • Any time ordered to be served for a probation violation is in addition to any sentence received for the conviction of a new offense. The two sentence cannot run concurrently.
  • “Resentence the defendant for the remainder of the unexpired term to any community-based alternative to incarceration authorized by chapter 36 of this title (Tennessee Code); provided, that the violation of probation and suspension is a technical one and does not involve the commission of a new offense.”
• If the violation is found to be substantiated, the defendant has a right to appeal.

Contact Us

If you have additional questions or concerns about a probation violation in the State of Tennessee, please feel free to contact the criminal defense lawyers at Bennett | Michael | Hornsby. Contact the team today by calling 615-898-1560 to schedule your appointment.