Have You Been Charged With Violating Your Probation In Georgia?
Many people who have either been convicted of or pleaded guilty to a crime have been sentenced to a period of probation. This period of probation can be for a brief period of time, or it can be for several years. For some individuals, they are first sentenced to a prison term followed by a period of probation.
Technically speaking, probation is the part of a sentence that the court allows a person to serve out of custody rather than in confinement. In other words, probation is a privilege-not a right. Nevertheless, there can be certain drawbacks to probation, such as the payment of monthly supervision fees, random drug screens, and the requirement that you periodically check in with your probation officer. The biggest drawback, however, are the potential consequences if you violate any of the terms of your probation.
General And Special Conditions Of Probation
General Conditions Of Probation
Georgia Code 42-8-35 lists out several conditions that a court my impose on a criminal defendant. In almost every case, the general conditions of probation that a defendant must comply with include the following:
- Do not violate any local, state, or federal laws and be of general good behavior;
- Avoid injurious and vicious habits, such as alcohol or drug intoxication;
- Avoid persons or places of disreputable or harmful character;
- Report to the officer as directed and permit the officer to visit the probationer at the probationer's home or elsewhere;
- Work faithfully at suitable employment insofar as may be possible;
- Support the probationer's legal dependents to the best of the probationer's ability; and
- Do not change your present place of abode, move outside the jurisdiction of the Court, or leave the State for any period without prior permission of the probation supervisor.
Special Conditions Of Probation
Simply put, special conditions are those conditions that are added on that closely mirror the circumstances of the case and the particular defendant. For example, in a DUI case a judge will almost always order that the defendant obtain a drug and alcohol evaluation within a period of time following then sentence. In a theft case, the judge may order the payment of restitution as a special condition of probation.
Georgia Code 42-8-34.1 defines special conditions as a condition which:
(1) Is expressly imposed as part of the sentence in addition to general conditions of probation and court ordered fines and fees; and
(2) Is identified in writing in the sentence as a condition the violation of which authorizes the court to revoke the probation or suspension and require the defendant to serve up to the balance of the sentence in confinement.
Potential Punishments
Georgia Code 42-8-34.1 states what the potential punishments can be if a defendant violates any term of his probation.
The Defendant Violated Any General Condition Other Than By the Commission of A New Felony Offense Or There Is The Commission Of A New Misdemeanor Offense
The court shall consider the use of alternatives to include community service, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for such alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.
The Defendant Committed A New Felony Offense
The court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the felony offense constituting the violation of the probation.
The Defendant Violated Any Special Condition Of Probation
The court may revoke the probation or suspension of the sentence and require the defendant to serve the balance or portion of the balance of the original sentence in confinement.
The Probation Revocation Hearing
Burden Of Proof
Georgia Code 42-8-34.1(b) states that a court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.
Note the term "by a preponderance of the evidence." A probation revocation hearing is not the same thing as a criminal jury trial. The State does not need to prove the defendant violated his probation beyond a reasonable doubt. In simple terms, a 'preponderance of the evidence' burden of proof merely means that it is more likely than not-or greater than a 50% chance-that a claim is true.
In addition, the burden is on the State to prove a violation of probation by a preponderance of the evidence. Farmer v. State, 216 Ga. App. 515 (1995).
Purpose Of A Probation Revocation Hearing
The purpose of a probation revocation hearing is to determine whether the conduct of the defendant during the probation period has conformed to the terms and conditions outlined in the order of probation. Evans v. State, 153 Ga. App. 764 (1980).
Tine Periods
Georgia Code 42-8-38 states that "the court shall give the probationer an opportunity to be heard fully at the earliest possible date on his or her own behalf, in person or by counsel, provided that, if the revocation proceeding is in a court other than the court of the original criminal conviction, the sentencing court shall be given ten days' written notice prior to a hearing on the merits." When determining what constitutes a reasonable amount of time before a revocation hearing is conducted, courts have concluded that absent special circumstances, 30 days is a reasonable time period between petition and hearing, for the sake of both the state and the defendant. Anderson v. State, 166 Ga. App. 521 (1983).
The Rules Of Evidence
As already state, probation revocation hearings are not the same thing as criminal jury trials. Consequently, courts have consistently held that probation revocation hearings do not need to be as formal as jury trials. In addition, the traditional rules of evidence of normal criminal proceedings are not applicable to a probation revocation hearing and evidentiary matters are within the discretion of the trial judge. Christy v. State, 134 Ga. App. 504 (1975).
However, it is important to note that Georgia courts have held that hearsay evidence has no probative value and is inadmissible in a probation revocation proceeding. Overby v. State, 237 Ga. App. 730 (1999); Brown v. State, 294 Ga. App. 1 (2008).
Constitutional Considerations
The purpose of a probation revocation hearing is to determine whether a defendant violated the terms of his probation for a crime that he has already been convicted of or has pleaded guilty to. It is not a judicial determination as to whether he committed the crime he is on probation for. As such, a probationer has no right to a trial by jury at a probation revocation hearing. Scott v. State, 131 Ga. App. 504 (1974).
In addition, there is a clause in the 5th Amendment of the U.S. Constitution known as "Double Jeopardy." This constitutional protection essentially guarantees that no person shall be prosecuted for the same criminal offense twice. However, courts have held that double jeopardy does not apply to parole and probation revocation proceedings because these hearings are not designed to punish a criminal defendant for a violation of a criminal law-the purpose is to determine whether a parolee or probationer has violated the conditions of the probationer's parole or probation. United States v. Whitney, 649 F.2d 296 (1981).
Finally, even a ruling in favor of the defendant at the probation revocation hearing does not prevent the State from continuing to prosecute the defendant in a subsequent criminal trial for the same criminal offense(s). State v. Jones, 196 Ga. App. 896 (1990).
Due Process
Despite the fact that there are less stringent requirements in probation revocation hearings than in criminal trials, defendants are still afforded due process constitutional protections as guaranteed in the U.S. and Georgia Constitutions. For example, in order to revoke the probationary features of a sentence, the defendant must have notice and an opportunity to be heard. In addition, the notice must sufficiently inform the defendant not only of the time and place of the hearing and the fact that revocation is sought, but the grounds upon which it is based. Horton v. State, 122 Ga. App. 106 (1970).