When will my sentencing after revocation be scheduled?
This is a common question asked by individuals who have been revoked from probation or extended supervision. Your probation officer alleged that you violated rules of supervision. You went to a hearing, and the administrative law judge found that the allegations against you were appropriate for revocation. Nobody appealed, or the appeal was denied. So, what’s next?
Was your sentence withheld, or was it imposed and stayed?
This important question determines whether a sentencing after revocation hearing is even appropriate. Below, a criminal defense attorney explains the differences:
What is an imposed and stayed sentence?
- This phrase means that the defendant was sentenced to a specific term of incarceration, but the defendant is instead placed on probation. For example, the defendant may be sentenced to 1 year in the county jail, but the sentence is imposed and stayed for 2 years probation. The defendant in this example does not sit any time in the jail unless he is revoked. Instead, the defendant is placed on probation for 2 years.
- Upon being revoked off probation, the imposed and stayed sentence is no longer stayed. It becomes active, and that amount of time is how long the defendant sits. In our previous example, if the defendant is revoked at any point during his 2 years of probation, he is required to go to jail for 1 year.
- So, when will your sentence after revocation be for an imposed and stayed sentence? There isn’t one. You do not return to the judge for sentencing, and instead serve the default penalty.
What is a withheld sentence?
- This phrase means that the defendant was simply placed on probation, and advised by the court at the time of sentencing that the sentence was withheld. For example, the defendant was put on probation for 2 years. Again, the defendant does not sit any time in jail unless he is revoked. He’s placed on probation for 2 years.
- Upon being revoked off probation, the defendant returns to court to be sentenced. A sentencing after revocation is only a relevant hearing in withheld sentence situations. Why? In other situations, the penalty has already been determined. Only in withheld sentences does the defendant need to return to court for his punishment.
So when is my hearing?
Unfortunately, there is no requirement that your sentencing hearing be held without a certain amount of time. After you’re revoked, the court will simply determine a date and time that works for all parties, and you’ll be returned to court for sentencing. Importantly, if you’re sitting on a probation hold, or simply have been remanded into custody, you will receive credit for any days spent in custody.
What about my extended supervision?
Individuals sentenced to prison in Wisconsin on or after December 31, 1999 or February 1, 2003 must be given a bifurcated sentence. See, Wis. Stat. sec. 973.01. A bifurcated sentence consists of a period of initial confinement (in time) followed by a period of extended supervision (out time). During the extended supervision time, the defendant is assigned a probation officer and must follow rules just as an individual on probation does.
However, things change upon revocation of extended supervision. As discussed above, the penalty is either imposed and stayed, or withheld, for probation. For individuals on extended supervision, the administrative law judge determines how long the defendant should be incarcerated for upon revocation. So, where individuals facing probation revocations are sentenced by the trial court judge, the administrative law judge, at the time of the revocation hearing, determines how long the defendant should be re-confined.
Individuals who have been revoked off extended supervision do not return to court for a sentencing after revocation.
Contact the Milwaukee criminal defense attorneys at Van Severen Law Office for revocation defense
If you’ve been alleged to have violated your rules of supervision, you may be facing a revocation of your probation, extended supervision, or parole. Although criminal defense attorney Ben Van Severen discussed sentencing after revocation, our defense attorneys usually defend individuals well before a case gets to this point. To speak with a defense lawyer at Van Severen Law Office, give us a call at (414) 270-0202.