If you are charged with violating your probation, the consequences could be severe- you may be facing an active jail sentence that had been suspended in favor of probation. You need an experienced lawyer by your side to protect your rights and freedom. Here are the Top 10 Things You Must Ask Your Lawyer:
1. Was the violation filed correctly? The report must be filed with the Clerk of Court and within the Probation period.
2. What is in the violation report? Be sure to determine the basis for any hearsay evidence, and challenge when hearsay is not supported.
3. If the probation violation was for failure to pay a fine or restitution, were you able to pay the fine or restitution? This must be willful; if you were unable it is not a violation.
4. Was the probationary period correct, and was the imposed sentence from the underlying conviction appropriate, as determined by the Court's guidelines for individuals with the same criminal history? If not, were special findings made to justify the longer range? Were those findings properly recorded?
5. Where will the violation hearing be held? If held in District Court (felony can be heard here if both parties agree), an appeal will go to the Superior Court as a de novo, or new, hearing.
6. Was the probation extension (if applicable) proper? This is especially important for someone who has new charges against them. A little known section of the probation statutes, in effect, extends the probationary period by however long the new charge took from charge to resolution.
7. Did you have an attorney for the charge when you were convicted? If you were denied one, or the record does not state whether you had counsel, the suspended sentence can not be activated. The fine and conditions such as substance abuse treatment can be enforced. Enforcement is done through contempt proceedings, not probation violations.
8. Was the probation part of a 90-96? If so, it must be treated as a regular probation, guided by the rules for violation of a regular probation. Deferred prosecutions, which are addressed in the same statute, may be guided by the same rules.
9. Is the alleged violation a condition listed in the judgment? A condition of probation must be specified in the judgment in order to be valid.
10. Was the alleged violation a Class 3 misdemeanor conviction? If a Class 3 misdemeanor conviction was the only conviction, probation cannot be revoked.
