When someone is sentenced on a criminal charge and given probation, it is certainly not a hallpass. When there is a violation, the person will be served with a probation violation “warrant” and will brought before the sentencing court for a hearing of the alleged violation.
What exactly is probation anyway?
Probation in South Carolina can be given on a wide variety of charges. When someone is sentenced, they are sentenced to the “South Carolina Department of Corrections for a period of ____ years, suspended upon ____ years probation” Probation is actually a prison sentence that the Judge has held in abeyance to see if the offender can reform without being incarcerated. There are standard terms of probation, but the court can also impose other terms as well; such as payment of restitution, public service work, require GED, etc.
What is a violation?
A violation of probation is any violation of the terms imposed. These include any of the standard terms or the specific terms imposed by the court. Some violations are handled administratively and some by the court. The probation officer will determine when he or she should seek a warrant for a probation violation. Once a warrant for the probation violation is served, the probationer is brought back before the court that sentenced him to make a judicial determination as to whether the probationer should be sent to prison.
Probation in South Carolina can only be given in General Sessions Court. Therefore all non-administrative violations of probation are heard in General Sessions. At the hearing, the probationer can admit or deny the violation and state whether the violation was “willful” or “not willful”. The Judge will hear from the probation officer regarding the violation and the defendant and his attorney will have the opportunity to either contest or present evidence in mitigation. Evidence in mitigation means an explanation to the court as to why the violation occurred.
Judges’ opinions are widely different when it comes to probation violations. Some judges are lenient sentencers and then will hammer someone on a probation violation; some will sentence harshly in the beginning and then not be inclined to revoke any probation, and others are in between.
The hearing judge has the authority to dismiss the violation, continue the person on probation, partially revoke a period of the sentence and then continue probation, revoke in full (meaning to send the person to prison for the entire sentence), or simply to terminate meaning to end the person’s sentence completely. In other words, the judge can do anything from nothing up to a full reinstatement of the entire sentence.
A thorough explanation of any violation and a well-thought-out case for mitigation can make the difference in going to prison or not.
Once the judge decides what to do, the decision is generally announced then and there. A person who thought they might be going home to supper after the hearing may find himself looking very confused while going through the side door of the courtroom with a bailiff at each arm. While the judge has the authority to delay any reporting time, chances are the probationer will be sentenced and be taken into custody immediately.
Having an attorney for your probation violation with you who understands the process is extremely important. If the person cannot afford an attorney, he is entitled to have one appointed for the violation hearing. Don’t wait until the last minute to hire someone. An attorney needs several days at least to be able to gather the information, discuss the case with the probationer, and prepare effectively for the hearing.
If my office can ever be of assistance, please contact us.