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The Violation of Probation (VOP) process typically begins when a probation officer discovers a violation, and then files an Affidavit of Violation of Probation, setting forth the specific grounds and circumstances for the alleged violation. The probation officer also files a Violation Report, and typically asks the court to issue an arrest warrant, so that the probationer can be held in custody until he appears at a VOP hearing. Though probation officers do have discretion to request a “Notice to Appear” without a warrant, they do so very rarely.
Eventually (usually in a matter of days) this paperwork is submitted to the court and finds its way in front of a judge, who will issue the arrest warrant, directing the sheriff to take the probationer into custody. Judges have the discretion to set bond on these warrants but rarely do so. In fact, bonds are set on misdemeanor VOP warrants very rarely, and almost never on felony VOP warrants.
“This means that if you are arrested on a VOP warrant, you could be waiting in jail without bond for a long time, until you appear before the court.”
If you have been accused of violating your probation, you do not have the right to a jury trial. Instead, you can request a probation revocation hearing in front of a judge. At this hearing, your guilt only has to be proven by a preponderance of the evidence. This means that the prosecutor only has to prove it is more likely than not that you are in fact guilty of a violation. Further, at this hearing, you can be called as a witness to testify against yourself.
“This means that the prosecutor only has to prove it is more likely than not that you are in fact guilty of a violation. Further, at this hearing, you can be called as a witness to testify against yourself.”
In the unlikely event that you are found guilty of violating your probation, the judge can sentence you to the maximum term imposed by the underlying crime you were originally accused of.
Of course, you will be given credit for any time already served on the charge. On the other hand, the judge has discretion to terminate, modify, or revoke your probation as he/she sees fit, under the circumstances. This means that the judge is given wide latitude to make a decision. Often the judge will take into consideration a plethora of factors, including but not limited to the seriousness of the original offense, the nature and egregiousness of the violation, your criminal history, any mitigating factors, and the recommendations of both the probation officer, and the state attorney.
If you have been accused of violating your probation, it’s important to seek the advice of an experienced criminal attorney. An attorney may be able to secure your release from custody while your VOP case is pending. Further, an attorney can often help you present mitigating factors to the court, and negotiate a lenient sentence.