General Information About Probation
Probation is a sanction and form of criminal sentence that is ordered by the Court after someone is convicted of a crime. There are two circumstances where probation is ordered. The first is where the defendant serves a jail sentence and upon released, remains under supervision while on probation. The second is where a Court orders probation instead of incarceration. If probation is completed successfully, the defendant’s sentence will terminate with no further punishment or adverse consequence.
For violations of bail in Rhode Island go to the Bail Violations page.
Types of Probation
All defendants on probation in Rhode Island fall under the authority of the Department of Corrections, Office of Probation and Parole. Persons on probation may either be on:
- supervised probation
- unsupervised probation
Supervised probationers are assigned an individual probation officer and are required to check in, either by phone or in person, with the probation officer periodically.
The assigned probation officer monitors the probationer’s behavior and compliance with the terms and conditions of probation, as set by the Court as part of a criminal sentence.
Unsupervised probationers typically have few or no special conditions of probation, and therefore, require very little supervision. These individuals are typically not monitored or supervised at all, and if so, less so than individuals on supervised probation.
Conditions of Probation
Once placed probation, the defendant must comply with the conditions of probation. Standard conditions of probation include a travel restriction to remaining within Rhode Island unless expressly given permission to leave the State and a requirement to keep the peace and be of good behavior, which means do get arrested for a new offense.
Special conditions of probation vary on a case-by-case basis but may include attendance of:
- mental health counseling,
- abiding by no-contact and/or no trespass orders,
- drug and/or alcohol testing,
- attendance of substance abuse assessments and/or treatment,
- maintaining employment,
- travel restrictions,
- limitations on the internet use,
- prohibitions on having contact with children,
- surrendering and abstention from possessing firearms and/or ammunition,
- attendance of batterer’s intervention or domestic violence classes,
- performance of community service,
- payment of court costs,
- fines and/or restitution,
- attendance of anger management classes,
- driving and/or license restrictions,
- attendance of sex offense counseling,
- sex offender registration,
- and more.
Once bail conditions are set by the Court at the time of sentencing, they remain in full force and effect throughout the term of the sentence imposed and may only be modified with permission of the Court.
Under Rhode Island criminal law and criminal procedure, failure to comply with a condition of probation is called a probation violation. Probation violations are governed by Rhode Island Rule of Criminal Procedure 32 (f).
A notice of probation violation is filed by the prosecution or Probation Department with the court where there is reason to believe a defendant has failed to comply with a condition of probation. The decision to file notice of a probation violation is discretionary, and not mandatory.
However, this occurs very often where a defendant is either charged with a new offense or repeatedly fails to comply with special conditions of probation that were previously imposed by the Court at the time of sentencing.
When a notice of bail violation is filed, the defendant and his/or her attorney must be served with both the notice itself and the basis for the notice. If notice of probation violation is filed, a defendant may either be summonsed to appear in Court to answer the violation, or a warrant may issue for his or her arrest.
Upon being presented before the court as a probation violator, the court may release the defendant on bail subject to a probation violation hearing, or order the defendant detained pending the outcome of this hearing.
A defendant accused of violating probation is entitled to a probation violation hearing within ten (10) business days or two weeks. Probation violation hearings may occur earlier, if circumstances allow, but are more often continued to a later date at the request of either party.
Types of Probation Violations
A defendant who fails to strictly abide by the conditions of probation may be accused or and declared to be a probation violator.
There are two types of probation violations:
- technical violations
- substantive violations
Technical violations involve the probationer’s failure to comply with special conditions of probation such as failing to report to the probation officer as directed, failing to attend counseling, or required classes, testing positive for illicit drug use, and more.
Substantive violations occur where the defendant is charged with committing new crime while on probation. While technical violations may see less serious than substantive violations, any probation violation may result in serious consequences.
Probation Violation Hearing
A probation violation hearing is conducted by the Court to determine whether the defendant violated a condition of his or her probation. The prosecution has the burden of proving that the defendant failed to comply with one or more probation conditions. This may include special conditions set by the Court or the standard condition of failing to keep the peace and remaining of good behavior.
Upon receiving notice of violation, the defendant may either admit to violating the condition(s) of probation or proceed to a full hearing. If the defendant elects to admit violation, this may be either with or without an agreement between the parties regarding the punishment to be imposed.
If a substantive violation is alleged, the defendant may solely admit to the violation by failing to keep the peace and remain of good behavior, or both the violation and the new offense(s).
Admitting both is often referred to in the legal community as a “wrap up” because the defendant is admitting his misconduct in order to wrap up or resolve all of his pending legal problems – the probation violation and the new charges that serve as the basis for the violation.
If a defendant elects to proceed to a probation violation hearing, his rights are less than at trial. A probation violation hearing is a civil proceeding. The prosecution is not required to prove the alleged violation beyond a reasonable doubt. Rather, the burden is by a preponderance of evidence, which means more likely than not.
While the defendant is entitled to testify, present evidence and witnesses on his or her own behalf, and cross-examine witnesses called by the prosecution. The rules of evidence and admissibility are also relaxed.
The Court may consider types of evidence that otherwise may be inadmissible at a trial, such as physical evidence obtained from an alleged unlawful search and/or an unlawful confession obtained in violation of the constitution. After the presentation of evidence at a bail violation hearing, the parties will be given the chance to present arguments for and against the finding of a violation.
If found to be in violation of probation, the court can allow the defendant to remain on probation or to revoke the probation and send the defendant to jail for a term up to and including the maximum allowable sentence for the original crime for which the defendant was placed on probation.
If the defendant was serving probation along with a suspended sentence, the judge may impose any sentence that is equal to or less than the suspended term.
In addition, if the defendant’s probation violation was the result of the commission of a new crime, the defendant may either face prosecution of the new crime separately or consider resolving the new case contemporaneously with the probation violation.
When a defendant elects to admit to the violation, he may admit to the violation alone, or also to the new offense, thereby resolving his pending legal matters at the same time. Most importantly, the judge has complete discretion as to what sentence can be imposed. The judge may order the defendant to no jail, the maximum jail sentence, or any number in between.
Punishment for a Probation Violation
Under Rhode Island criminal law and procedure, if the Court, after hearing or upon the defendant’s admission, is satisfied that he or she violated the terms and conditions of probation, a sentence may be imposed.
The Court may re-admit the defendant back on probation in accordance with the terms and conditions initially imposed. The Court may also revoke probation and impose a jail sentence.
For defendants serving on probation concurrently with a suspended jail sentence, any imposed prison term imposed for a probation violation may not exceed the suspended term.
For violators on straight probation and not serving a suspended sentence, the Court may impose a jail sentence up to the maximum allowable punishment for the crime that caused the probationer to initially be placed on probation.
If you have been accused of a Violation of Probation contact Rhode Island Criminal Attorney John L. Calcagni III today by email or call today at (401) 351-5100 to schedule a free consultation.