If you have been sentenced to probation in New Jersey, then it is important to understand the full spectrum of what you are going to be facing in the near future. A probation sentence also means that the defense of your actual criminal case is over, and the judge has handed out a sentence and punishment. If your sentence includes probation, it means that the judge decided that probation could be beneficial as both a punishment and rehabilitation measure for you after a criminal conviction. If you have direct questions about the parameters of probation and how probation can affect you, then it is important to speak to an experienced criminal defense attorney right away.
What is Probation?
Probation is a form of punishment and sentence that a judge can hand down after a conviction for a criminal offense. Probation is available for misdemeanor convictions as well as many felony offenses. If a judge sentences someone to probation, it means that the judge believes that the interests of justice can be served in the present case without the need to send someone to jail or prison. Probation is essentially a sentencing alternative to jail. The threat of jail or prison is the most significant threat that a judge has over a defendant in his or her court. Many judges understand that incarceration should be looked at as more of a secondary option if there appears to be a legitimate chance at rehabilitation for the defendants in their courts. Judges will often give defendants the opportunity for probation as long as their criminal case or criminal history does not give the judge reason to believe that probation will be a waste of time. Probation is considered more of a first option than a last option, so it is important to understand what can happen during your probation that can lead to more serious punishment by the court.
How Pre-Trial Intervention Mirrors Probation
Defendants can also be entered into a form of pre-trial probation called pre-trial intervention. Pre-trial intervention is generally reserved for individuals who are nonviolent first-time offenders for non-serious crimes. If you are accepted into pre-trial intervention, then your case is taken off of the regular court calendar and diverted to a different calendar for court oversight. Those who are on pre-trial intervention will submit to monitoring and oversight by a probation agent and the court for a period of up to three years.
If you are being monitored on a pre-trial intervention contract, it is important to know that your criminal case did not actually end. Your criminal case would essentially be put on hold while you complete the requirements of your pre-trial intervention. If you successfully complete the terms of your pre-trial intervention, then your case will be dismissed entirely, and you walk away with a clean criminal record intact. If you do not comply with the terms of your pre-trial intervention, then your case will go back on the original judge's calendar for further proceedings and potential trial.
The main differences between probation and pre-trial intervention deal with timing (pre-trial intervention happens prior to a conviction) and the end result (pre-trial intervention can result in a criminal conviction never entering). Pre-trial intervention should be looked at as more of an opportunity than punishment. If you are accepted into pre-trial intervention, then you have the opportunity to control the eventual outcome of your criminal case. This form of power does not exist with probation as all you can control in regular probation is your compliance, and you will be unable to prevent or remove your criminal conviction.
Who are the Main People Involved in a Probation Case?
The main people involved in a probation case are you, the judge, and a probation agent. You may have other people who are involved in your case that deal with substance abuse treatment and/or counseling or some other requirement set by the judge. Your probation agent serves as sort of a buffer between you and the judge. A probation agent's job is to carry out the judge's orders and punishment in the cases that the agent monitors. You may have to regularly meet with your probation agent to check on your progress and submit to drug and alcohol testing. If there is a problem completing one of your probationary conditions or you violate your probation in some way, then the probation agent can report these things to the judge for the judge to decide if there should be any further punishment or requirements.
The most important person in a probation case is you. Probation is often looked at as a punishment, but it can also be looked at as an opportunity. It is an opportunity to finally have some level of control over the final outcome of your case. If you complete the terms of your probation successfully, then you may never see the inside of a jail or prison cell. This alone is enough motivation for many to straighten up their acts, so they don't end up getting a jail or prison sentence from a judge.
How is Probation Different from Parole?
Probation and parole have a similar function in how they generally operate, where individuals are monitored by the court with the threat of incarceration. The main differences between probation and parole are the timing of the sentence and who is monitoring you. If you are on probation, it is likely before any sort of significant jail time. Probation serves as an opportunity to avoid jail or prison, while parole occurs after a prison sentence. You may be sentenced to probation after a jail sentence in certain circumstances, but probation generally occurs before such a sentence.
The person monitoring you differs if you are on probation or parole. Probationers are monitored by a probation agent that reports to the judge overseeing your case. Parolees are monitored by a parole agent who works for the state prison system and reports to the parole board. Parole serves to see how an inmate can reintegrate into society to live a life outside the walls of a state prison. Since parole occurs after a prison sentence, it means that anyone who is on parole served prison time for some sort of criminal felony conviction. Parole is also generally more invasive than probation since the individual at that point is trying to prove that they deserve a second chance to live their lives outside of prison.
A common thread between probation and parole is the limiting of your constitutional rights during the time you are being monitored. Probation and parole agents are allowed to conduct warrantless searches of you, your house, and your car to ensure that you are following the terms of your supervision. Probation and parole agents don't even need a reason to search you or your property for contraband or evidence of criminality. Since probation and parole are alternatives to incarceration, you are submitting to the authority of the agent who is monitoring you. Once you have completed probation or parole, then your rights against unreasonable search and seizure are restored, and governmental authorities will need a warrant or warrant exception to search you or your property again.
What are the Different Types of Probation?
In the state of New Jersey, there are two main types of probation, along with pre-trial intervention, as discussed above. The main two types of probation are supervised and unsupervised probation. These are also known as reporting and non-reporting probation. The main difference between these, as you may guess, has to do with how invasive and difficult the terms of the probationary sentence will be.
- Supervised or reporting probation: Under this type of sentence, a defendant will be monitored by a probation agent and will have to regularly report to an agent and make scheduled court appearances. The probationer will also have to appear to take scheduled drug tests or complete other required terms. This is considered to be the more difficult and invasive type of probation.
- Unsupervised or non-reporting probation: Under this type of sentence, a defendant will be still on probation and will still be required to complete specific terms but will be able to do so without a probation agent closely monitoring them. The court will still set regular check-in dates to make sure you are following the terms set by the judge. This type of sentence is more common with low-level offenders and cases as well as pre-trial intervention programs. A judge will sentence someone to unsupervised probation if he or she believes that the person is someone that the court can trust to follow the conditions of probation as well as the law.
Whether you are sentenced to supervised or unsupervised probation, you will still be expected to follow the rules and requirements set by the judge. If you have questions about the conditions of your probation or need help, then it is important that you speak to an experienced criminal defense attorney as soon as possible.
What are Common Expectations of Probation?
If you are sentenced to probation, then you will be expected to complete several requirements and follow the orders of the court. Some of the most common expectations of probation include:
- Staying crime-free
- Drug testing
- Alcohol testing
- Court fines
- Probation supervision fees
- Restitution if owed
- Substance abuse assessments
- Drug treatment
- Mental health treatment
- Special classes ordered by the court
- Finding and maintaining employment
- Finding and maintaining stable housing
- No possession of any firearms
These are just some of the most common things that you will be expected to do if you are sentenced to probation in your criminal case. It does not make a difference if you are sentenced to supervised or unsupervised probation; you can be sentenced to all of the same types of requirements under either style of monitoring.
What are the Common Costs of Probation?
The most common costs of probation include the oversight fees to be on probation, as well as any fines or other costs. These other costs can include restitution to the victim in the case if there is any property damage or injury. Restitution is necessary when the victim in the case is harmed or has property damaged that costs money to fix or replace. This amount of restitution can be contested in a special hearing to determine what the appropriate amount owed should be.
Money is an important part of your probation. If you don't pay your fines, probation oversight fees, or other probation expenses, then you can be violated on your probation and be punished by the judge. You will also be responsible for paying for any treatment, counseling, and/or any drug or alcohol testing.
The biggest cost of probation is your time and effort. If you don't put aside the time and focus on the responsibilities of your probation, then you will likely find yourself back in front of the judge on a violation. Make sure you invest your time and effort wisely if you are on probation of any kind. A failure to do so can have disastrous consequences.
What Happens if You Violate Probation?
If you follow all the terms of your probation, then you will likely never have to face the judge again and stress about his or her potential punishment. If you violate probation, however, then you are facing a whole new set of potential challenges. If you violate probation, then you re-open the judge's power and authority to sentence you again on your violation as it relates to the original offense. If you are found guilty of violating your probation, then the judge has the following options in sentencing you:
- The judge can continue your probation without any significant punishment
- The judge can add new conditions and requirements to your probation
- The judge can extend your probation up to the maximum level allowed on your original criminal conviction
- The judge can terminate your probation and sentence you to jail or prison up to the maximum level allowed on your original criminal conviction.
If you are accused of violating your probation by committing a new criminal offense, then you will be facing not only the threat of being punished for the violation, you also face the threat of a new conviction and new sentencing, which can include jail or prison. If this happens, it is possible to join your cases to have them operate concurrently.
As stated before, probation is an alternative to jail or prison. But this doesn't mean that just because you are sentenced to probation, that you will never potentially see a jail or prison cell. As long as your case is being monitored by a judge, you can be sent to jail or prison for a violation. Unless you are accused of committing a new crime, the judge will have the maximum parameters of sentencing available to them from your original conviction(s).
How a Probation Violation Hearing Works
If you are accused of violating probation, then you will have the opportunity to defend yourself in a probation violation hearing if that is your wish. Probation violation hearings operate differently from criminal trials but have some general similarities. In a probation violation hearing, there is no jury. Juries are only reserved to help determine the guilt or innocence of people who are facing pending criminal charges; juries do not exist to decide whether an individual on probation violated their probation or not. So, if you are facing a probation violation hearing, then you will have the opportunity to testify and call witnesses to testify, but the final determination of whether you violated probation will be made by the judge.
The burden of proof is different in a probation violation hearing than it is in a criminal trial. In a criminal trial, to find you guilty of committing a crime, a jury or judge has to be convinced beyond a reasonable doubt that you committed the crime in question. The “beyond a reasonable doubt” standard is the highest burden of proof that we have in American law. If someone is convicted beyond a reasonable doubt, it means that the jury or judge was convinced that the person committed the crime, and there isn't any reasonable belief that the person didn't.
In a probation violation hearing, the burden of proof is “preponderance of the evidence.” A preponderance of evidence means that once the testimony and other evidence are presented, that the trier of fact believes that it is more likely than not that the events happened as they are alleged. If you were to look at the preponderance standard in the form of a percentage, then it would mean that the trier of fact is more than 50% convinced that the events occurred as they are alleged. This standard is, of course, much lower than the standard given for criminal trials.
Other than the standard of proof and the fact that no juries are allowed, a violation of probation hearing operates similarly to any other trial. The prosecutor is able to call witnesses to testify to prove the violation, just as the defendant is able to do the same. The rules of evidence also apply to probation violation hearings. This means that the court will only hear legally admissible evidence during the hearing to help make a determination of what happened and if there should be any further punishment.
What If I Don't Want to Have a Probation Violation Hearing?
There are times when you don't want to have a probation violation hearing because the facts are not really in question. If it looks like you are going to lose any potential probation violation hearing based on what has occurred in your case, then you can also plead guilty to the violation to allow the court to move towards the punishment phase of a violation. It is not recommended that you do this without fully understanding the rights you are giving up, as well as having an idea or agreement in place as to what your sentence will be. You are not required to have a probation violation hearing if you don't want to. But it is important to make sure that you know what you are doing if you waive your right to a hearing. You have the right to a lawyer if you are accused of violating your probation.
Punishment Options for Probation Violations
The judge will have all of their potential options at their disposal for any probation violations. If you are on misdemeanor probation and are found in violation of your probationary terms, then the judge can sentence you to jail up to the maximum on your original charge and conviction. If you are on probation for a felony offense, then the judge can sentence you to prison up to the maximum on your original charge and conviction. Judges also have the option to impose any sort of lesser sentence that they see fit.
If you are found in violation of probation, then you will find yourself at sort of a crossroads. At that point in time, your life can significantly change. Your life may be upended again by the judge if the judge decides on a harsh punishment. If you are facing a probation violation, then do not go it alone. The standards for proving you guilty are much lower in a violation hearing, and you can find yourself facing serious punishment for even a relatively minor violation.
Probation Violation Appeal Options
If you are accused of violating your probation and lose your probation violation hearing, then you have the ability to appeal the judge's decision. You have the ability to appeal the decision on whether you violated probation, as well as the sentence imposed by the judge for the violation. If you wish to appeal, then you have 45 days to file the appropriate appeal paperwork with the court so a higher judge can hear your case. It is important to note that you will need to demonstrate specific mistakes or issues in your violation appeal to have a chance at winning your appeal. Appeals are not won simply because you did not like the judge's decision. You will need to point out how the judge violated the law or made a decision that did not comport with the facts and circumstances that were presented during a probation violation hearing.
Special Probation for Certain Drug Offenses
In New Jersey, there are certain criminal offenses that carry with them the presumption of incarceration. This means that if you are convicted of one of these offenses, then you are expected to serve a minimum period of time in jail or prison. Criminal felonies in New Jersey are broken into four main categories of offenses, they are:
- First-degree criminal offenses: These are considered the most severe criminal offenses that exist under New Jersey law. Charges such as murder, rape, and manslaughter are classified as first-degree criminal offenses. If you are charged with a first-degree criminal offense in New Jersey, then you can face a mandatory minimum of 10-20 years in prison if you are convicted.
- Second-degree criminal offenses: This tier of criminal charges is the second most severe level of criminal charges that exist under New Jersey law. Charges involving certain drugs, kidnapping, or burglary can be found under this tier of offenses. If you are charged with a second-degree criminal offense, then you can face a mandatory minimum of 5-10 years in prison.
- Third-degree criminal offenses: This tier of criminal charges does not have the presumption of incarceration like first- and second-degree criminal offenses do. Charges such as drug possession, illegal gun possession, and various types of theft are included in this tier of offenses. You can face up to five years in prison if you are convicted of a third-degree criminal offense.
- Fourth-degree criminal offenses: This is the lowest tier of felony charges that exists under New Jersey law. This tier also does not carry the presumption of incarceration. Charges such as forgery, stalking, and minor robbery offenses are included in this tier of offenses. If you are charged with a fourth-degree criminal offense, then you can face up to 18 months in prison if you are convicted.
First- and second-degree criminal offenses are the most serious level of crimes that exist under New Jersey law. New Jersey special probation can be available to help avoid a mandatory minimum prison sentence for a first- or second-degree drug offense. To be sentenced under special probation for a drug offense, the following elements must be met and found by the judge on the record in court, they include:
- The defendant has been professionally evaluated to determine if he or she will benefit from drug treatment
- The defendant has an addiction to drugs or alcohol
- The defendant committed the underlying offense while under the influence or was influenced by his or her addiction to commit the crime
- The defendant will likely benefit from drug treatment
- The defendant is not accused of using or possessing a gun in committing the underlying crime
- The defendant does not have 2 or more criminal convictions for crimes of the first- or second-degree
- The defendant is not currently facing any charges or has a prior conviction that deals with a crime of violence
- If the defendant is sentenced to special probation, it will not result in a danger to society
- The defendant has found a suitable substance abuse treatment facility that has agreed to treat the defendant
If the judge finds that the nine factors above are met in a specific drug case, then the defendant can avoid a mandatory minimum sentence and be sentenced to drug probation to allow the defendant to receive treatment instead of a mandatory prison sentence.
What Happens if You Violate Special Probation?
If you are granted special probation by the court, then you will be expected to follow several requirements just as you would on any other probation sentence, with the included extras that come with a drug probation sentence. If you violate your special probation, then the court can revoke the special probation and resentence the individual up to the maximum amount of time allowed under the original charge. The time spent doing any treatment will not count towards any jail or time credit unless you were sentenced to an inpatient facility that will not allow you to leave. If you have served any time in jail during your case, then you will receive credit for that time from the judge when he or she imposes a sentence.
You have the right to have a hearing to defend your alleged violation(s) in special probation just as you do with regular probation in New Jersey. Special drug court probation exists to allow those who really need treatment to get the treatment they need so they don't re-offend and end up in court again. In many of these cases, drugs or alcohol are the real problems that exist in the defendants' lives. If the court is able to get these issues under control and help the defendant find and maintain sobriety, then everyone can benefit. Special probation is not for everyone, and a thorough examination of your case and situation is likely necessary to determine if special probation is right for you. If you are facing a serious drug charge that could qualify for special probation, then it is important to get in touch with an experienced defense lawyer immediately.
The Role of a Defense Lawyer in Probation Violations
A defense lawyer has many of the same abilities to defend a probation violation as he or she does in a regular case prior to any conviction. You can have a defense lawyer represent you in a probation violation hearing to examine and question the witnesses and evidence brought against you. Your lawyer can also help you investigate your violation to help show that you did not actually violate your probation. A defense lawyer can also help you put on your own defense and call your own witnesses to testify.
If you are accused of violating probation but do not wish to have a hearing to contest the violation, then a defense lawyer can help negotiate whatever your punishment may be, just as your lawyer can negotiate your case from the beginning. You may be able to avoid having to go through with a probation violation hearing if your lawyer can work out a punishment that you are comfortable with. This would allow you to be able to avoid the potential of more severe punishment if you are found responsible for any violations.
In short, it is essential to have proper representation any time you are facing potential jail time, prison time, or any other punishment for a criminal offense. Make sure you don't sell yourself short and just follow what you think will make everything easier. Make sure that you have the proper defense with the help of an experienced criminal defense lawyer.
Your Right to a Public Defender
When you are accused of any crime, you have the right to have an attorney's assistance. If you are unable to afford your own attorney, then one will be provided for you at public expense. These defense attorneys are known as public defenders. You have likely already seen or come across public defenders in court if you have been sentenced to probation. While public defenders can be fine attorneys, the main issue people face is that they are forced to have an attorney represent them that they did not choose nor pay for. This can lead to uneasiness or a level of distrust of the attorney since they are being paid for by someone else. One of the most important factors in hiring an attorney to represent you is choice. You have the ability, not the right, to have an attorney of your choice if you can afford it.
When facing a criminal case and potential incarceration, what you truly can't afford are the consequences that can be imposed if you are convicted or found responsible for a probation violation. The money that you invest now in yourself by hiring an experienced attorney can pay huge dividends in your future.
Contact the Lento Law Firm Today
If you are facing an allegation of a probation violation in New Jersey, then it is important to speak to an experienced criminal defense attorney. Probation violations can vary greatly as can the potential punishment. Understanding the parameters of your alleged probation violation is essential to formulating the appropriate defense strategy. Attorney Joseph D. Lento and his team at the Lento Law Firm have the required experience and knowledge that you need to help you find success in defending your alleged violation. To learn why the Lento Law Firm is the right choice to help you fight your shoplifting charge, call us at 888-535-3686 or contact us online.