A person charged with a crime is obviously looking for the best option. Ideally, person wants to avoid a conviction all together, but there are situations where a person is convicted or accepts a plea deal because the evidence is simply overwhelming. Sometimes, even the best criminal defense strategy can’t beat undisputed facts or evidence which meets the elements of an offense beyond a reasonable doubt!
County or even a state prison jail sentence is obviously a concern in many cases involving drugs, guns, and even DUI but in addition to jail, a convicted person will almost always receive a period of probation and or parole. These two terms are often used interchangeable and therefore incorrectly because people fail to understand the difference. Probation is a period of time where a person must meet certain requirements in order to comply with their sentence. These requirements include the following:
- Remaining arrest free
- Clean drug screens
- Making payments towards restitution
- Maintaining employment
- Completing certain educational programs and/or classes
While a person is on probation, there won’t be any issue as long as they meet the terms of that probation. If they fail to meet the requirements, however, the judge can resentence the person to a new period of probation and/or a period of incarceration. The purpose of probation is to rehabilitate a person without incarceration. What most people fail to understand, however, is that probation is simply a jail alternative and if a person violates the conditions of it, the usual prosecution argument is that probation isn’t working. If a person fails to meet the conditions of probation, the prosecution can recommend that probation be revoked and that the person be sentenced to a period of incarceration followed by another period of probation. With a probation sentence the court is specifically ordering that the person not be incarcerated.
Parole, however, is different. Here, a person is ordered into custody but is released before the end of his prison term. So if a person was sentenced to 3-6 years of state prison, he may be paroled at the end of the 3rd year (the minimum date.) Again, like probation, if a person fails to meet the requirements, they are in violation of the terms of their parole and risk being sent back to prison to serve the remainder of their term (the maximum.) The only time counted toward parole, however, is time spent in jail. If, for example, you are sentenced to 11.5 to 23 months of county jail and paroled at your minimum date, you may owe another 11.5 months, if you commit a violation in the 20 month.
If there’s a violation of county parole, a judge can order that a person serve the remaining time on parole in custody. If it’s state parole, the state parole board will make that decision. In my experience clients often fail to understand that probation and parole are simply alternatives to jail. While obviously jail is the worse of the alternatives, the conditions of probation and parole are sometimes difficult especially for people with drug addictions.
There are two types of violation—technical and direct. A direct violation occurs anytime a person is arrested and convicted on a new criminal case! All other violations, including arrests, that don’t result in a conviction are technical violations. A direct violation will almost always result in your probation being revoked or you being sent back to jail to serve the remainder of your term. A technical violation, such as a positive drug screen or a failure to make payments may not result in as a harsh of a penalty; this is where the right criminal defense lawyer can make the difference.
For more information on probation or parole contact our office or visit our free download section