If you’re convicted of a criminal offense—whether through a guilty plea, a jury verdict, or a bench trial—you’re facing a number of possibilities at your sentencing hearing:
- an executed sentence in jail, work release, or home detention;
- a suspended sentence (also known as time served and usually the result of a plea negotiation);
- probation; or
- any combination of the above options.
This post is intended to cover the basics of probation, including what it is, how long it lasts, and what happens if you violate the terms.
A Probation Agreement Is a Contract
Simply put, probation is an agreement between you (the defendant) and the court. It goes something like this: In place of an executed sentence, I (the defendant) agree to cooperate with court supervision for a fixed period of time.
In other words, instead of going to jail, you agree to behave yourself and do what the court says.
This sort of arrangement is completely discretionary, so not everyone has this option. The purpose of probation is to offer a sort of compromise between rehabilitation and punishment. Just like with any other contract, you can’t violate the terms without exposing yourself to legal consequences.
In most cases, the conditions of probation mirror those contained in the plea agreement, which was filed in advance of your sentencing hearing. Common terms of probation include, but are not limited to:
- no drinking;
- no drugs;
- no guns;
- required substance abuse counseling; and
- no new criminal charges.
Reporting vs. Non-Reporting Probation
Let’s distinguish between reporting and non-reporting probation. If you’re given reporting probation, it’s more of a burden. You must check in with a supervising officer and submit to a drug screen, usually on a monthly basis. These check-in meetings take place at the probation department, and they’re structured like any other sort of office appointment: You show up, check in, sit in a waiting room, and listen for your name.
Non-reporting probation, on the other hand, asks considerably less of you. With non-reporting probation, you don’t have to physically show up for meetings. You do, however, have to stay out of trouble and avoid testing positive for drugs.
Every county in Indiana is different. Some don’t offer non-reporting probation, while others allow you to complete reporting probation with phone calls instead of physical visits. Some might require you to check in more or less frequently than once a month. Because probation conditions vary from county-to-county, it’s extremely important for you to understand exactly what’s expected of you. Ignorance of the details of your terms of probation is no excuse.
What Are the Consequences for Violating Probation?
A probation agreement is a contract. Violating it will land you in hot water. Anything other than strict adherence to the terms the court has set can result in your probation being revoked. If that happens, you can forget about rehabilitation and get ready for some good, old-fashioned punishment.
For example, let’s say you’ve just pled guilty. You receive a suspended sentence of 365 days in jail—meaning you don’t have to serve any actual time—and you’re placed on probation for 365 days. If you successfully complete probation, you don’t have to worry about jail time.
If you violate, however, the judge has the power to put you in jail for the duration of the suspended sentence. This is what’s known as full backup time.
If you fail to comply with any of the terms of your probation, you’ll be headed back to court, and you’ll have to explain yourself to the very same judge who granted you probation in the first place. This judge won’t be happy, and they will the be the one who determines your penalty. Options include:
- leaving you on probation;
- altering the conditions of your probation to make them more restrictive; or
- ordering any part of your suspended sentence executed.
If executed time is ordered, it can be served on home detention, on work release, or in a cell. Placement is usually up to the judge.
If I’m in a Probation-Related Jam, Do I Really Need an Attorney?
In short: YES! At a violation hearing, the major players will likely be yourself, a representative from the probation department, the prosecutor, and the judge. If you’re smart, you’ll bring an experienced criminal defense attorney with you.
If you’re lucky, this attorney will already have been in contact with the prosecutor and worked out an agreed resolution to your violation. This is the best-case scenario, because it allows you a bit of say in your own punishment.
The agreed resolution, however, is not binding on the court. The judge ultimately has the authority to reject the agreement and order the parties to renegotiate. Don’t try to handle this process on your own.
Probation conditions always require at least a few lifestyle adjustments, and a violation can earn you a trip behind bars. You absolutely want to be familiar with your terms of probation and take them seriously. The best way to achieve this is by seeking legal advice from an experienced professional.
The way you handle your time on probation is bound to affect almost every other aspect of your life—your work, your friends, and your family. Don’t think you can waltz into a violation hearing without representation, accept a slap on the wrist, and go on about your business. It doesn’t usually work like that.
Probation violations are serious business, and they directly implicate your physical freedom. Why would you want to take a chance on something like that? An experienced attorney can save you valuable time and help to limit your exposure.
The last thing you want to do is show up without a lawyer when the prosecutor and the probation representative are trying to cook up a novel way to make an example of you. Most judges already think that a probation violation deserves to be met with some sort of response. You need someone in your corner to try and mitigate the damage.
If you or someone you love is facing a probation violation, don’t just cross your fingers and hope for the best. Call the Marc Lopez Law Firm at 317-632-3642, and remember—always plead the 5th!
