Felony and misdemeanor probation: what to expect

What is felony probation?

Let’s start with an easy definition: probation.  Probation is supervision.  It allows for the defendant to live at home and continue a relatively normal existence.  The defendant can continue working and remains out of jail (unless a condition of probation is some jail, which we’ll discuss later).  The court orders the defendant to avoid doing certain things that relate to the underlying criminal conviction.  For example, in a domestic violence situation, the defendant is likely prohibited from contacting the victim from the underlying crime.  The same applies for any kind of violent crime.  For a charge involving alcohol, you’ll likely have to remain absolutely sober.  Finally, while on probation you’re subject to additional searches based on the fact you’re on probation.

While on probation, a probation officer or probation agent supervises the defendant.  That individual has the power to revoke the defendant.  A revocation is a process which removes the defendant from supervision and instead places him back into custody.  There’s a few ways this works:

• Imposed and stayed sentences.  The judge announces an imposed and stayed sentence at the sentencing hearing.  Upon a failure of the defendant while on supervision, this penalty occurs.  For example, the judge sentences the defendant to 3 years prison, but stays that for a period of 2 years probation.  If the defendant is revoked during the period of supervision, he serves 3 years in prison.
• Withheld sentences.  The judge does not announce a withheld sentence at the sentencing hearing.  Upon a revocation, the defendant returns to the trial court for sentencing.  For example, the judge sentences the defendant to 3 years probation.  Unlike the previous example, there is no default penalty announces.  If the defendant fails probation, he returns to the judge and faces the maximum penalty.

Felony probation rules

Frequently individuals are placed on probation for a variety of felony offenses.  Here are a few:

• Drug crimes.  Certain crimes, like a second or subsequent possession of marijuana charge, are felonies.  While the world is certainly changing, and many would argue this is a mitigated offense, it still applies.  Possession with intent, delivery, and manufacturing cases all could lead to felony probation.  Frequently the conditions the defendant faces while on this kind of probation focus on sobriety.  Generally you’ll be required to maintain absolute sobriety while on probation.
• Violent crime.  Exceptionally violent crimes like homicide, armed robbery, and 1st degree sexual assault usually don’t lead to probation.  But lesser offenses, such as substantial battery or reckless child abuse could.  Importantly, violent crimes have specific victims.  In most cases, your probation rules will prohibit you from having any contact with the victim.  If drugs or alcohol influenced the offense, you will have to remain absolutely sober.  Finally, completing an anger management or batterer’s intervention class will likely be a condition of your probation.
• Sexual assault.  Generally individuals who commit sexual assaults do not receive probation.  There are certainly exceptions.  Third degree sexual assault is arguably the most mitigated felony sexual assault crime.  The charge is a Class G felony, carrying with it a maximum possible sentence of 10 years in prison.  First and second-degree sexual assault of a child charges usually don’t result in probation.  That all being said, sexual assault probation likely includes a sex offender evaluation, any necessary treatment, and a no contact order with the victim.

Felony probation violations

It’s certainly crucial that you follow your probationary rules.  Violating the rules will result in trouble.  In the worst-case scenario, it will lead to you being revoked off probation and sent to jail or prison.  What’s the process that occurs after violating the terms of your probation?

1. Firstly, your agent initiates a probation hold.  A probation hold results in you being taken into custody.  While in custody, your agent and his supervisor staff your case to determine how they’ll proceed.  There are two options:
   1. You’re offered an alternative to revocation.  Also referred to as an ATR, this course of action allows you to complete some additional requirement and continue with probation.  For example, sometimes an ATR requires the defendant to complete an in-custody drug treatment program.  Once he finishes the program, the defendant re-enters the community.
   2. Your probation officer proceeds with revocation proceedings.  You have an opportunity to argue your case in front of an administrative law judge.  If the judge agrees, you will be revoked.  If the judge does not believe revocation is appropriate, you continue with supervision.

The difference between extended supervision and probation.

Extended supervision and probation are two types of supervision.  What’s the difference between the two?

Extended supervision is a prison sentence.  It’s not the part where you sit in prison, but it’s a prison sentence nonetheless.  In Wisconsin, defendants sentenced to prison receive a bifurcated sentence.  That means there are two parts: initial confinement (time in prison) and extended supervision (time on supervision).  Both of these must occur for any prison sentence.

Extended supervision typically involves the same kind of rules that an individual follows on probation.  If you don’t follow those rules, you’ll also face revocation.  But the eventual penalty is based on your period of extended supervision.  That’s the maximum penalty.  An administrative law judge cannot increase your sentence.

Because misdemeanor probation does not involve prison (and therefore a bifurcated sentence), you misdemeanor extended supervision does not exist.

Probation has been around a long time and has consistently evolved.  You’ll encounter words like probation, parole, and extended supervision frequently.  It’s safe to say that within our lifetimes, at least one more term will evolve into reguar use.

What is misdemeanor probation?

Misdemeanor charges generally lead to some kind of offer for probation.  There are certain exceptions.  For example, in Milwaukee County in the past, individuals facing OWI charges received straight jail sentences without probation.  And in another example, Milwaukee prosecutors frequently recommended jail, without probation, for individuals convicted of carrying a concealed weapon.  There are a lot of people on probation, and every case is different.  Next we’ll address some general misdemeanor probation rules:

Misdemeanor probation rules

Like felony probation rules, typically misdemeanor probation rules rely on the underlying offense.  Here’s a list of standard rules of probation that could apply to your case:

1. Do not violate the law;
2. Report all police contact to your probation officer;
3. Cooperate with counseling requirements/suggestions;
4. Report to appointments with your probation officer;
5. Obtain a travel permit before leaving Wisconsin.

Tips for passing your probationary period

Dealing with probation officers can be difficult.  We’ve worked with the people who are supervising you, and we understand how miserable some of them are.  But one thing is crucial: follow the rules.  If you don’t follow the rules, your agent can, and will (especially if they truly are miserable) try to simply lock you up without any kind of second chance.  If you’re told not to drink, don’t drink.  Finally, if you can’t talk to your ex, don’t.

Consult with a probation revocation defense lawyer

At Van Severen Law Office we defend individuals facing all kinds of criminal issues.  Frequently we defend individuals facing probation revocation, extended supervision revocation, and in conflicts defendants encounter with their agents.  Retaining a good, local criminal defense attorney to help you through this situation is crucial if things have started to fall apart.  Don’t waste time complaining to your friends and family, who will just confirm what you’re telling them.

And finally, if you’re actually facing a revocation, it’s crucial you hire an attorney.  Your freedom literally relies on fighting probation or extended supervision revocation.  At Van Severen Law Office our criminal defense attorneys regularly win revocation hearings.  We’re familiar with the issues you’re about to face, and we’re prepared to fight for you.  Contact us at (414) 270-0202 for help.