Have you ever considered that probation is a good thing and a sign of forward progress? Crime, in some capacity, has occurred since the dawn of civilization. However, the ways in which we have chosen to deal with the punishment of the crimes committed has evolved. Thankfully, gone are the days of punishments being doled out by the victims of a crime as a means of revenge (a practice which created a vicious cycle of the victim becoming the criminal and vice versa). Humanity eventually decided that constantly seeking retribution was no way to live and laws regarding the definition of certain crimes, punishments for those crimes, and the idea that one is innocent until proven guilty were established.
Today, the punishment for a crime is designed to fit the severity of the crime itself and the focus has shifted more toward responding to the crime with reform for the offender than that of public humiliation and pay back. If an offender is found guilty (either by a judge or jury) or pleads guilty to a crime, they will have the punishment for the crime determined by the judge in accordance with sentencing guidelines and as influenced by certain mitigating factors. These guidelines differ for each category of crime misdemeanor of felony. Sentences can and often do include a term of probation, either alone or following incarceration.
There are different rules and requirements for probation sentences levied in state courts and at the federal level. The information provided here applies to state level probation only.
What is Probation in Virginia?
Probation is a sanction imposed by the court for a specific period of time following the conviction of a crime where an offender is subject to certain terms of good behavior. Probation can be ordered by a judge together with jail time, or in lieu of confinement. Time spent in jail is sometimes shortened when combined with probation. In the case of probation without confinement, offenders often do not serve any time in jail as long as probation is successfully completed.
The Different Types of Probation
Unsupervised. Probation that is unsupervised simply means that a probation officer is not involved. The judge sets forth the terms of the offender’s probation and the offender is required to follow those terms for a predetermined period of time on their own without check ins. The terms of probation may only be to be of good behavior and to follow all laws and ordinances of the Commonwealth of Virginia or there can be other requirements imposed as the judge may determine fit the circumstances.
Supervised. Probation that is supervised means that an offender has a probation officer to whom they must report. There are two types of supervision; low-level and intensive. The type of supervision an offender will require is dependent upon their treatment plan. Intensive supervision requires more extensive and frequent contact with the probation officer than low-level supervision. Offenders on low-level supervision are required to check in monthly, answer interview questions, maintain a residence at an approved location and provide “proof of existence” using biometric recognition.
Is a Finding Under Advisement Considered Probation?
Sometimes, such as in cases where the crime committed is not considered to be severe and the offender has no prior criminal record, the Court may issue what is called a finding under advisement. This finding is not technically probation, and it differs from a sentence including a term of probation, as it usually results in the underlying charge being dismissed rather than the offender having been convicted. However, in certain FUA cases, such as a first offender drug case, supervised probation is utilized.
Similar to probation, a finding under advisement will require certain discretionary conditions to be met as determined by a judge (sometimes as broad as the offender simply being of “good behavior”) and a review date to be set. More often than not the offender and their attorney will appear before the court for the review date and if the preset conditions are met, then the charge is dismissed or reduced depending on the agreement that is reached.
Requirements of Probation
Probation requirements are set by the judge issuing the sentence following conviction or a guilty plea. The requirements will vary from offender to offender, by the type of supervision, and the level of supervision. Some common requirements are as follows:
- on good behavior and abiding by the laws of the Commonwealth.
- Having no contact with the victim of the crime and/or refraining from returning to the premises of the crime.
- Mandatory community services hours.
- The payment of any and all fines assessed by the court.
- Regular meetings with a probation officer.
- Permitting home and/or workplace visits from a probation officer.
- Remaining drug/substance free and/or refraining from alcohol consumption.
- Attending drug or alcohol treatment programs.
- in the Commonwealth of Virginia unless permission is granted to leave the state.
- Obtaining and/or maintaining gainful employment.
- Not possessing a firearm.
The powers and duties of probation officers are set forth the Code of Virginia in §53.1-145. Probation offices shall perform the following duties:
- Investigate and report on any case pending in any court or before any judge in their jurisdiction which has been referred to them by the court or a judge.
- Supervise and assist with placement in substance abuse treatment program.
- Arrest and recommit a person to confinement for violation of the terms of their probation.
- Order and direct drug and alcohol screening tests.
- Monitor the collection and payment of restitution to any victims.
- Keep records, make reports, and perform other duties as required.
Probation officers may also assess other needs of the person on probation, what risks they may pose, help them access services they may need, and oversee any rehabilitation the person may need.
How Long Does Probation Last?
How long probation lasts varies on a case-by-case basis but may not exceed 5 years from release from incarceration for felony offenses or 1 year for misdemeanor offenses. Factors that contribute to the length of a probation term imposed may include the severity of the offense committed (these maximums do not apply in cases concerning sex offenders), the total length of the sentence, and an offender’s behavior while on probation. In some cases, a petition may be filed with the court to reduce the length of the probation period.
There are two types of issues which may trigger a probation violation. These are new convictions and technical violations.
A new conviction is any conviction (including guilty pleas) of any crime during an offender’s probationary period.
The Code of Virginia defines a “technical violation” in §19.2-306.1. Pursuant to the Code a technical violation means a failure of the offender to:
- Report an arrest within 3 days.
- Maintain regular employment or notify of job changes.
- Report within 3 days of release from incarceration.
- Permit a probation officer to visit home or employment.
- Follow instructions of the probation officer, be truthful/cooperative.
- Refrain from the use of alcoholic beverages to excess.
- Refrain from the use, possession, or distribution of drugs.
- Refrain from the use, ownership, or possession of a firearm.
- Gain permission to change residence.
- Maintain contact with the probation officer such that the person’s whereabouts are no longer known (absconding).
Consequences of Violating Probation
Violating any condition of probation is a serious offense, one that can easily land an offender back in jail. In some instances, a warning may be issued first, however those on probation may find themselves back before a judge to answer for not following the guidelines set forth. If a violation is repetitive or serious in nature, you could face the following penalties:
- Have a requirement imposed to extend the length of your probation.
- Be required to serve time in jail before resuming probation.
- Have additional requirements for your probation set in place.
- Full revocation of your probation and any jail time that was previously suspended.
In 2021, House Bill 2038 was passed by the Virginia General Assembly then enacted into law by the Governor of Virginia. Previously, there was little limitation to the length of time sentences could be suspended or imposed for the punishment for probation violations. HB 2038 modified Virginia Code §19.2-303.1 to state that a sentence could not be suspended for longer than the period of time an offender may have been sentenced to, rather than leaving suspension open ended (indeterminate) and to the discretion of the presiding judge.
The bill further introduced Virginia Code §19.2-306.1 in its entirety which provides limitations on sentencing if a suspended sentence is revoked. This section prevents people from being held on lengthy probation violation sentences which are not related to the original crime, but rather are considered technical violations. Additionally, the new laws limit the amount of total probation a court may impose to a maximum of 1 year for a misdemeanor offense and 5 years for a felony offense. This prevents a prior criminal sentence from hanging overhead and allows an offender to put the criminal conviction behind them.
Technical violations also have fixed, short sentences now associated with them. The first violation may not be punished by incarceration. A second violation carries no more than 14 days of incarceration. A third or subsequent violation may result in any or all previously suspended jail time being imposed. This is made more complicated by the fact that special conditions are technical but put the violation outside of the guidelines. These new laws are more beneficial to offenders than the prior laws were.
If you are facing criminal charges for which probation may be imposed, or if you have violated your existing probation terms, our experienced criminal defense attorneys can help. Contact us today at 888-691-9319 to discuss what we may be able to do for you.