While most of our criminal defense work is focused on acquittals or the complete dismissal of charges there are situations where a client pleads guilty or is found guilty. Following a conviction or a plea an individual is either placed on probation or sentenced to a period of incarceration followed by a period of probation.
While on probation an individual must follow rules established by the probation and parole department in addition to any other terms or special conditions that a judge may impose at the time of sentencing. While special conditions may vary from case to case, generally an individual on probation must (1) periodically report to his/her probation officer, (2) remain arrest free, and (3) submit to random drug testing.
Parole is the period of time remaining on your sentence of incarceration after you have served your minimum term of incarceration. The primary difference between probation and parole is the effect of a violation on that status. If you are on probation and found in violation, a judge may sentence you to any period of incarceration or probation which is available to him/her at the time of sentencing. If you are on parole, however, of the judge cannot sentence you beyond your maximum sentence period.
For example, if you are on 24 months of probation and violate in the 23rd month the judge could resentence you to another 24 months. You have no right to receive credit for the previous 23 months and you therefore would have to do all of your probation over again. If, however, you are sentenced to 3-6 months of incarceration, paroled on the 3rd month, your minimum date, the judge can only resentence you to 3 more months of incarceration. The judge cannot sentence you beyond your max date which would have been 6 months.
Your sentencing judge has a great deal of discretion in these cases and so it is very important that your attorney carefully prepare his argument that he will deliver at the time of your violation of probation/ parole hearing. A strong argument could mean the difference between jail and simply a continuation of your current probation. It is also important that your attorney maintain a strong relationship with your probation officer as he/she makes the initial determination as to whether you have violated probation/parole. A violation could result in simply a warning or it could result in a petition to the Court requesting that it find you in violation. There is a two-step process when a petition is filed based on a violation. This process is known as a “Gagnon” and is named for United States Supreme Court case of Gagnon v. Scarpelli.
The first step known as a Gagnon I Hearing is a pre-revocation hearing in which a probation officer must prove that probable cause existed to believe that a violation was committed. The standard of proof at a Gagnon I Hearing is a “probable cause” standard which is a low burden of proof. The purpose of the hearing is to protect the individual against unlawful detention. The hearing is informal and usually held in the adult probation and parole office. If probable cause is found at the conclusion of the Gagnon 1 a Gagnon II Hearing is scheduled before a judge which will be the final determination as to whether you have violated the conditions of your probation or parole. The judge at the Gagnon II will, in almost all cases, be the judge who originally sentenced you; with the only exception being if the judge has retired, passed away, or no longer a judge for whatever reason.
At a Gagnon II Hearing the judge will focus on two questions: (1) did a violation occur and (2) what will be the new sentence? The standard of proof at a Gagnon II is “by a preponderance of the evidence” which means “more likely than not”. This is actually the same standard used in civil matters (i.e. personal injury, breach of contract.) The standard is not beyond a reasonable doubt which is the standard at a criminal trial. The assigned district attorney or prosecutor must, however, usually call your probation officer or other witnesses to meet that burden of proof. If the prosecution establishes that a violation has occurred the judge will make a decision, following oral arguments of your defense counsel and the prosecutor, as to your new sentence.
Prior to sentencing your probation officer will make his or her recommendation and the assigned district attorney will more than likely support that recommendation and so, again, it is important that your defense counsel maintain a good relationship with your probation officer. As stated earlier the judge has a wide degree of discretion in these cases and the preparation of your attorney is therefore critical to your success in these matters.