Probation Surrender: An Overview

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 What is Probation?

After an individual has been convicted of a crime, the court may use its discretion to impose probation as a punishment instead of jail time. Probation is different from parole, where a convict is released from prison early on good behavior.

With probation, a probation officer monitors the individual and helps them learn to behave in responsible ways. Probation is based upon the theory of rehabilitation.

Rehabilitation is the idea that the individual will change their ways if they are provided with the opportunity. Courts recognize that incarceration is not always an environment that is conducive to, where inmates may learn to psychologically identify themselves as criminals.

What is Probation Surrender?

The term probation surrender is basically exclusive to the State of Massachusetts. It simply means a violation of probation.

Probation is a concept that originated in Boston around 1830. Massachusetts was the first state to codify probation in 1880.

50 years later, other states follow suit, which is the origin of the unique term, probation surrender. There are numerous ways an individual can violate the terms of their probation.

The term surrender means to give up a legal right. A violation of the terms of an individual’s probation may result in a loss of numerous legal rights, including:

  • Jail time;
  • Fines;
  • Community service; and
  • Other requirements.

The court may use its discretion to impose probation instead of jail time after an individual has been convicted of a crime. A criminal attorney who works in the field of probation surrender, they may argue the defendant’s violation was unintentional, a mistake, and a result of extenuating circumstances.

How is Probation Violated?

There are many ways probation may be violated, including:

  • Get arrested or charged with another criminal offense;
  • Fail to notify of a change of the individual’s address;
  • Fail to report to the probation officer;
  • Fail a drug test;
  • Fail to pay a probation fee;
  • Fail to attend a rehabilitation program;
  • Fail to stay away from the victim; and
  • Other conduct.

Essentially, probation may be violated by getting into any kind of trouble.

What is the Probation Surrender Process?

  • Notice: The first step in the probation surrender process is obtaining a letter from the probation department clarifying the alleged violations and scheduling a probation surrender hearing;
    • After the notice is served, the hearing should be scheduled within a reasonable period of time;
  • Hearing: The probationer has the right to a defense lawyer during the probation surrender hearing. A prosecutor must prove probation was violated by a preponderance of the evidence, which is unusually low for criminal proceedings;
    • Additionally, the rules of evidence are very lax in probation surrender hearings. For example, the prosecutor representing the probation department may bring in hearsay and unlawfully seized evidence;
  • Sentencing: An individual who is surrendering probation may be sentenced to:
    • Incarceration;
    • Longer probation;
    • Electronic monitoring;
    • House arrest;
    • Community service;
    • Loss of driver’s license; or
    • Additional fines.

If an individual’s probation officer believes that they are not following the terms of their probation, such as the conduct noted above, the individual may be arrested. There are two categories of probation violations, technical and substantive.

A technical probation violation does not involve an arrest or a serious offense but, instead, the violation of their probationary conditions. Examples may include:

  • Testing positive for drugs or alcohol;
  • Failing to report to or comply with a community-based;
  • Nonresidential treatment or service program; and
  • Being detained by the police or arrested.

If an individual is arrested for a new offense while on probation, it constitutes a substantive probation violation. These violations are more serious because they involve a violation of the law rather than a violation of probation terms.

What is a Violation of a Probation Hearing?

In court, an individual will be asked to admit or deny the allegations against them. An individual’s attorney will:

  • Analyze the affidavit of violation;
  • Investigate the underlying facts;
  • Learn the facts surrounding the individual’s charges; and
  • Find personalized defenses and mitigation strategies specific to their case and circumstances.

An individual’s attorney can assist them in determining whether to admit to or to deny the allegations against them. A hearing will be held if the individual denies the allegations that they violated their probation.

Because the court will examine the evidence and hear testimony from witnesses, a violation of probation hearing is similar to a trial. It is distinct from a trial because the court will use the preponderance of the evidence standard to determine whether the violation occurred instead of the beyond a reasonable doubt standard which applies at trial.

A court may modify, revoke, or continue an individual’s probation or community control if they have committed a willful and substantial violation. The individual may be re-sentenced to any sentence which could have been imposed when they were first arrested if the court revokes their probation.

Typically, this results in the maximum penalty allowed by law. In felony cases, a sentence will be calculated using a score sheet which takes the individual’s criminal record, underlying charges, and the number of previous violations into account.

What Happens at a Probation Surrender Hearing?

A probation surrender hearing is held when an individual violates a condition of their probation. When a probation officer becomes aware of the violation, they issue a notice of surrender.

In this notice, the defendant is ordered to appear in court to defend the allegation that a violation occurred. Probation violations are very common.

Many times, individuals who receive surrender notices panic and work about what will occur at the probation surrender hearing. The answers to these questions are always case-specific.

It is important to note that individuals who get into legal trouble are often sentenced to probation, even if the underlying case does not result in a conviction. If the case is continued without a finding, there may be probationary conditions that the individual must satisfy before the case will be dismissed.

This also applies if the case is resolved by pretrial probation.

What is a Preliminary Hearing?

During a preliminary hearing, the court will determine whether or not there is probable cause to believe that probation was violated. The standard for this is very low.

In many cases, the court will find probable cause simply because the probation officer says that the individual violated their probationary conditions. This does not necessarily mean, however, that the individual has been found in violation.

It means that a final surrender hearing will be ordered and will be scheduled. In addition, bail may be set or additional conditions may be imposed after the preliminary hearing and prior to the final surrender hearing.

What is the Final Surrender Hearing?

During a final surrender hearing, a court must determine whether the probation officer is correct in alleging that an individual violated their probation. An individual may successfully defend these allegations if they should that the probation officer is not correct.

For example, if the individual’s probation requires them to report in writing once a month and they have copies of the documents which prove their compliance, they will prevail at the hearing. In addition, if the probation officer claims the individual did not complete a required program but the individual has proof that they did, they should prevail at the hearing.

It may be more difficult to defend against an arrest or an allegation that the individual committed a new crime. If, however, the individual’s attorney can convince the court that they did not do what they are accused of, a violation will not be found.

What are Probation Violation Sentences?

If an individual is found in violation by the court, the next step would be sentencing. The court has numerous options for sentencing probation violations, including:

  • Continuing the probation program;
  • Modifying or extending the program; or
  • Terminating the program.

The court may also order the individual to be imprisoned for a term as long as the underlying statute permits. It is important for an individual who receives a probation surrender notice to obtain the services of a good lawyer to represent them during the process.

Do I Need a Lawyer?

If you are on probation and you are concerned that you may face probation surrendering, it is important to consult with a criminal defense lawyer as soon as possible. Your lawyer can assist you with navigating the probation surrender process and help protect your freedom.

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