Violating Terms of Probation and Deferred Sentences
This is the second article in a series dealing with the types (and aftereffects) of community supervision. Namely, straight probation and deferred adjudication. In the first article, I demonstrated the differences between probation and deferred. This article will outline what happens if you screw up while on straight probation as opposed to what will happen if you screw up while on deferred adjudication.
As we learned in the previous article, when placed on probation the judge accepts your plea of guilty and orders you to serve a sentence in county jail or state prison. However, instead of incarcerating you, the judge probates your sentence and orders you to serve a set period of time on probation. On the flip-side, when you are placed on deferred adjudication, the judge accepts your guilty plea but instead of finding you guilty and sentencing you to serve time, the judge defers further proceedings and orders you on deferred community supervision for a set period of time.
So, you are now on probation or deferred and you start screwing up. First, you forget to pay your community supervision fees. Then, you start failing drug tests. Maybe you commit a new offense. Before you know it, the prosecutor’s office has been notified by your probation officer that action must be taken. What happens next?
Probation:
If you’re on probation the prosecutor’s office will file a Motion to Revoke with the court of continuing jurisdiction, i.e. the court where you were originally. From there, it is likely that you will be arrested and a hearing will be set on the revocation. Since you were on probation, there is about a 99% likelihood that you will be eligible for a bond until the hearing date – unless you have been revoked for committing a new offense and the new offense is one of the handful for which a bond is not allowed.
Once the prosecutor has moved to revoke, it is vital that you hire a lawyer or have one appointed for you. This is an adversarial proceeding so the right to counsel is Constitutional. At that point, your attorney can negotiate to have the probation reinstated. If this is unsuccessful, it will be necessary to prepare for the revocation hearing.
At the revocation hearing, the judge will hear evidence from the prosecutor as to why you should be revoked. This can be from witness testimony or evidence proving your various failures or the new offense. Like a real trial, once the prosecutor has finished, the defense is able to present argument as to why you should be reinstated.
At the conclusion, the judge makes a determination to revoke or reinstate. If the judge revokes you, since this is straight probation, he or she is required to order you to serve the time for which you were originally sentenced during the plea. Here’s the kicker. Even if you have fulfilled all but one day while on probation and the prosecutor files to revoke you on the very last minute of the very last day, you must still serve the entire sentence as originally ordered before being probated.
Deferred:
Now, things are slightly different if you’re on deferred. If you’re on deferred the prosecutor’s office will file a Motion to Adjudicate instead of a Motion to Revoke, and here is why.
As mentioned above, when you are placed on deferred adjudication, the judge accepts your guilty plea but does not actually find you guilty or sentence you to any jail or prison time. Instead, the judge defers proceedings and orders you to serve a set period of time on deferred community supervision. That is, the judge defers proceedings until it becomes necessary not to defer them any further; which, as explained above, happens when you start screwing up on your deferred.
The process is very similar to that of the Motion to Revoke, up to a point. You are likely going to be arrested after which a bond will likely be set – unless of course the prosecutor is moving to adjudicate because of a new offense and the new offense is one of a handful for which bond is not allowed. A hearing will be scheduled which gives your attorney a chance to speak with the prosecutor about reinstating you. And if that is unsuccessful, a hearing on the Motion to Adjudicate will commence.
However, unlike with a Motion to Revoke, the prosecutor must first move for an adjudication since you were never found guilty. Furthermore, if the prosecutor prevails at the hearing on the Motion to Adjudicate and the judge finds you guilty, you are not simply ordered to serve a sentence already given like that of a revocation. Instead, under a Motion to Adjudicate the full range of punishment for the degree of offense committed is at the disposal of the judge. Meaning, if it was a first degree felony for which you received a deferred, you could be sentenced up to life in prison.
In the end, the differences between a Motion to Revoke and a Motion to Adjudicate are minimal. The glaring difference being the punishment at the conclusion of each. This, as well it should, is a rather large incentive to act accordingly while on either. As the saying goes, the squeaky wheel gets the grease. If you’re a model probationer, follow all of your conditions, and treat your probation officer with kindness and respect, you will not face either scenario. On the other hand, act up or screw around and you may find out first-hand what it’s like to be revoked.
