Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
Now, for this segment of the client education series, we are going to talk about one of the more serious circumstances procedurally you can find yourself in or someone you love can find themselves in and that is known as a violation of probation or community control in felony court. One of the key differences between a VOP or a VOCC, as we often call it in the profession, between felony court and misdemeanor court is simply this. Rarely is there a bond. I mean that is just how it is. Most circuit court judges are not going to put a bond on a felony violation of probation. Now, another thing you need to be aware of is when you hear probation officers talk about your case and they say, “Yes, but these are technical violations”. Quite often, I hear people in the system say something they just should not say and this is what it is, that a particular type of violation is technical.
Now, this is going to be technical but in order to find a violation of probation, it must be willful and substantial. Every violation of probation that can result in prison or other punishment and sanction has to be willful and substantial. By definition under the case law, if it is a technical violation, it is neither willful nor substantial or it is willful but not substantial and so it is not a violation, yet you will hear this all the time. So, if you have questions about that, please, ask us because forever in a day for as long as I have been practicing and the same is true for all the lawyers I work within these team efforts that we call helping you through this difficult time with your case, we are going to hear technical violations. So, keep your ears open for that because if it is a technical violation, you should not be going to court. Why? Because it is not willful and substantial and therefore, not a violation of probation.
Now, one thing that is true about misdemeanor and felony violations of probation is when that affidavit of violation is written by a Department of Corrections division of probation and parole services’ probation officer, it is going to be a scattergun. In other words, it is not going to be just one thing in most cases. Now, it could be, that does happen, but generally speaking, they are looking for everything possible to add to that violation of probation affidavit because just as in the case of a misdemeanor case, it gives the prosecution an easier time proving a violation and allowing enhanced punishment. Now, procedurally, there will still be the first appearance even though it is going to be a no bond warrant most of the time in a felony case. And again, when it comes to bond issues, if it is not the judge that was the trial judge on the case who signed the affidavit of violations warrant request and issued a warrant, that judge is not going to grant a bond. And frankly, in most cases, a judge is not going to grant a bond in a felony VOP case.
There are exceptions and I have had that happen fairly recently numerous times but exceptions are generally not the rule. So, that being the case, you have no bond warrants and you are still going to have a violation of probation arraignment, the case may also be set for a trial, which we call a violation of probation evidentiary hearing, and there also could procedurally be a separate sentencing hearing, whereby somebody enters an admission of violation and then down the road, we have a sentencing hearing because both parties need to submit written documentation. And a key distinction between felony and misdemeanor court, both for violations of probation, community control and new charges is a person has a right to a pre-sentence investigation.
Now, generally speaking, if there is a plea agreement in a felony case that is not a VOP or VOCC, you can waive a PSI (Pre-Sentence Investigation). Technically, you can waive a PSI in a sentencing for a violation of probation. However, if there is not an agreement between the parties, most judges are going to order a PSI or an update PSI prior to sentencing. So, in those cases where we have an admission entered and sentencing later, the defendant will probably be interviewed by a probation officer who is going to do an update PSI or a first-time Pre-Sentence Investigation. Now, what we tend to do, depending on the case, is we will write a sentencing memorandum or we will do our own pre-sentence investigation. If it is a brain imaging case, which is very rare in violation cases but it does happen, if it is that kind of case or otherwise a mental health mitigation case, then my practice is usually we do a pre-sentence investigation of our own for sthe entencing hearing. This is rarely done in misdemeanor cases. The only exception is when you have a scenario where we are using brain imaging and the person is out on bond and can go get brain imaging. Well, when they have done the brain imaging, then we prepare a pre-sentence investigation of our own, what we call a DPSI, which simply means Defense Pre-Sentence Investigation.
We can do them in new cases, we can do them in violation cases but in felony VOPs and felony VOCCs, they are very hard to do. So, that is the basic procedure for felony VOP. And you have gaps of time all along the way. You have a warrant that is issued and then whatever time it takes for the person to turn themselves in or get picked up, then you have the gap in time between first appearance and the violation of probation arraignment, and you have another gap in time between probation arraignment and evidentiary hearing and the case can settle at arraignment, before arraignment, at an evidentiary hearing or you can have a contested trial, which is the evidentiary hearing.
So, those are the basics of felony violation of probation and if you have questions about your case or that of someone you love, just give us a call, we will be happy to answer your questions.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
