After a defendant has been indicted (charged with an indictment -also known as a felony), the defendant may enter a guilty plea to a lesser crime. instead of taking his chances with a trial, a defendant admits his guilt to a crime and moves on to the sentencing phase of the process.
One of the options available to the New Jersey sentencing court is to impose probation instead of imprisonment.
Who Gets Probation And Who Goes To Prison?
The answer to this question depends on many factors.
For example, first-time offenders who committed a third degree crime and are denied Pre-Trial Intervention (PTI) are usually good candidates for probation. In these situations, the defendant's alleged criminal conduct was much worse than a misdemeanor, (thus, denied PTI), but not so terrible that he or she should be sent to prison for years.
On the other hand, a defendant charged with a dozen third degree felonies and who has an extensive arrest and conviction record will neither be granted, nor benefit from probation. in addition, New Jersey is lacking the necessary funding to properly run the state probation program. Therefore, sentencing courts will carefully select which defendants they choose to release into society.
When a New Jersey sentencing court elects NOT to incarcerate a defendant, that court will amost always impose probation. New Jersey probation allows for the state to monitor a defendant for a period of one to five years. Of course, different defendants have different conditions imposed depending on their criminal records, the type of crime they plead guilty to, and the degree or severity of the crime for which they plead guilty.
When a defendant is placed on probation in New Jersey, the following conditions are usually imposed:
Each defendant is assigned a probation officer. Inevitably, when defendants find it difficult to satisfy all of the conditions of their probation, they are alleged to be in "VIOLATION of PROBATION" (VOP). When defendants face a VOP, they usually face serious imprisonment.
When you hire our firm, we represent you during your VOP hearing and really fight to get you a second chance. Many of our clients agreed to too many conditions of probation and were never realistically given a chance to succeed. During your VOP hearing we will do everything we can to help you get a second chance. Oftentimes we can ask the court to eliminate those conditions of probation which create the most challenges in your life.
How to know if you are Being Charged With V.O.P.?
Once your probation officer believes that you "the defendant" have committed a Violation of probation, he or she will file a complaint with the court.
The complaint is like any other charging document. It lists and describes how the defendant allegedly violated the terms and/or conditions of their probation. A hearing date is set and notice is issued to all parties. If a defendant fails to appear, the judge will issue an arrest warrant.
What Happens At The Violation Of Probation Trial?
It is important to understand that at the VOP trial, the probation officer is not the person trying to prove that the defendant violated probation. The county prosecutor tries the case for the state and the probation officer serves as a witness.
The defendant is entitled to have his or her attorney present. The defendant's attorney can cross-exam all state witnesses, present defense witnesses and introduce evidence favorable to the defendant facing VOP charges.
These are "bench" trials meaning that there is no jury. Only the judge decides whether the defendant violated probation.
What Happens If You Are Found Guilty Of A V.O.P.?
Before the judge renders his or her decision, all parties are permitted one last opportunity to make their case.
As defense attorneys we explain all of the reasons why it is in the interests of justice that our client be given another opportunity. We thoroughly prepare and do everything in our power to persuade the court NOT to sentence our client to prison.
Upon hearing all of the evidence and all of the arguments presented, the judge will determine which course of action is best for everyone. If some of the original conditions were overly burdensome, the judge may continue probation while removing the difficult conditions. If for example, the payment plan was too high, the defendant may receive a lowered, modified payment plan for their fines, costs, and restitution.
The worse case scenario is when a judge decides to remove the benefit of probation and sentences the defendant to prison.
It is for these reasons that a defendant who is charged with a Violation of Probation must retain legal counsel. If the judge decides to sentence the defendant to prison, all of the benefits of the original plea bargain are lost. A defendant may be sentenced to the maximum term of incarceration as permitted by the offense to which he or she plead guilty.
How to Appeal The Judge's Ruling?
A defendant has forty-five days to file the Notice of Appeal.
A WORD OF CAUTION:
If you intend to appeal the decision or the sentence, we strongly recommend that you give us a call.
This is an overwhelming and complicated process and you should hire an experienced criminal defense law firm.
Violations of Probation must be taken seriously. All of the work, time and money that you invested to get the original probation plea bargain could easily be wasted.
If you are facing a violation of probation, you may find yourself waking up in prison with no clear idea as to how you got there.
About the Author
Mr. Peyrouton is a Criminal Defense Attorney in Bergen County, NJ.