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Limits on Revocations of Probation

Posted by Sean A. Black | Apr 08, 2013 | 15 Comments

In Georgia, it is not unusual for a person sentenced on a felony case to either have a probation sentence or a split sentence.  A split sentence is one where the person serves a specified incarceration sentence followed by a term of probation.

The probation term includes certain conditions.  In other words, the person is allowed to serve their sentence outside of jail or prison as long as they abide by certain conditions.  There are general conditions such as obey the law, don't abuse alcohol or drugs, work if you are able to do so, stay away from disreputable people and places, etc.  There are also special conditions.  A special condition is one that is in addition to those general conditions.

Special conditions can be almost anything:  stay away from a certain person or place, don't use alcohol, only use prescriptions after they have been reviewed and approved by the probation officer, don't contact a person, don't use a personal computer, be on house arrest, wear a leg monitor, and many more.  These are usually things that make sense in relation to the underlying charge.

When a violation occurs after the person is sentenced (even if probation has not yet begun), one of the first things that must be determined is what condition has been violated.  The probation officer prepares a petition to revoke probation.  The petition specifies the condition which has been violated and sets out a basic description of how the condition has been violated.

If the defendant admits the violation or the violation is proven beyond a reasonable doubt at a properly noticed hearing, then the type of condition violated and the nature of the violation are important in determining the maximum punishment for the probation violation.   These limits are set out in OCGA § 42-8-34.1.

General Conditions

When the person is alleged to have violated a general condition of probation, then their treatment is determined by whether or not the violation is alleged to be a felony offense.

Non-Felony Violations

The first question is whether the new violation is alleged to be a felony offense.  If it is not a felony offense, then the court is required to consider the use of alternatives including community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or other alternatives deemed appropriate by the court.  The last alternative can include things like voluntary drug/alcohol treatment programs.  If such an alternative is deemed not appropriate by the court, the maximum part of the sentence which can be revoked is two years.

Felony Violations

If the probation violation is a new felony, then the court may revoke no more than the lesser of the probation sentence remaining or the maximum sentence for the new felony offense constituting the probation violation.

A little more simply, the court cannot revoke more time than is remaining in the sentence.

Otherwise the court looks to the sentence for the felony violation.  If the violation is a felony offense that carries up to ten years in prison, then the maximum that the court can revoke on the probation sentence is ten years.  If it is a felony offense that carries up to five years in prison, then the maximum revocation is five years.

Sometimes, a person is alleged to have committed multiple felonies which constitute violations of probation.  In that case, the maximum which can be revoked is the total of the maximums for the felony offenses admitted or proven.  So, if the person is proven (for the probation case) to have committed two new  ten-year felonies , then the court can revoke up to twenty years of the original sentence.

Special Conditions

Where the violation is of a special condition of probation, then the maximum revocation is of the entire sentence.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

Comments

Dennis McGaha Reply

Posted Aug 26, 2018 at 09:47:49

Mr. Black
Andrea Teesatuskie was sentenced to 3 years probation for attempted to shoplift . she was violated on that probation for defraud of drug screen. Is there any way to modify the probation or renstate the probation. Ms Teesatuskie has several health issues like MS and issues with mobility and requires several medications. This was her first violation she had been compliant with all other probation issues and was obtaining treatment substance abuse in Cherokee N.C. please respond if there’s anything you can do payment is available thank you for your time.

Sean A. Black Reply

Posted Aug 27, 2018 at 05:35:50

I would prefer that you submit this question through a contact form so that I can email you back directly.

Sean A. Black Reply

Posted Feb 11, 2019 at 11:02:22

So, a probation case and the new charges are two separate actions. There is no requirement that they be resolved in a particular order. Often, the probation case is resolved prior to the new criminal case.

In this case, it sounds like your brother signed a probation waiver where the probation officer offered a resolution of the Violation of Probation (VOP) and your brother agreed to that punishment.

The VOP would have been separate from the new charges. The new charges could have been resolved or tried together.

Frederick Fillmore Reply

Posted Jan 28, 2022 at 16:49:27

I was revoked on sept 2nd 2020 they revoked 3 yes from me an sent me to prison for a vop I was trying to see how much time will I be doing off it I’m almost at 18 months they said a 3rd of 3 which I tho was a year which I done did..an I have no Dr in the prison an done all my classes

Sean A. Black Reply

Posted Jan 31, 2022 at 05:26:29

Parole determines whether to release you early from this sentence. Matters what the underlying offense was, what the violation was, your history, whether this was probation or parole that was revoked, etc. With a year built, I would be optimistic, generally, that you might get considered for early release pretty quickly.

Lauren jones Reply

Posted Feb 22, 2022 at 00:01:31

My boyfriend was given in 2010 twenty years probation but it terminates after five years once the restitution is paid per the plea agreement, but he violated the probation in 2013 ir took them untill Jan 2015 to take him for the violation hearing but the courts revoked 10 years probation and sentenced him to prison. Well the restitution was paid off in 2016 as the only stipulation in the plea agreement. (And states that in the court transcripts). Should this whole 20 years be terminated in georgia

Sean A. Black Reply

Posted Feb 22, 2022 at 05:24:40

I understand your confusion, but the deal would have been: abide by the conditions of probation, pay off the restitution within five years, and the court will terminate probation. When he violated probation, it broke that deal. At that point, he had 10 years incarceration with the balance on probation with payment of restitution as a condition of probation. I am not sure how it would have happened that they held him for 1-2 years without a revocation hearing, but he should have been given credit for that time if he was in custody on the probation warrant. No, under these facts, I do not think the balance of his sentence should be terminated based on that original deal.

Tasha Lynn Reply

Posted Mar 10, 2022 at 16:45:30

My husband violated probation and was sentenced to 5 years by the judge. Will he have to serve the entire 5 years or can he expect to be released after doing 1/3 of the 5 years (20 months)?

Sean A. Black Reply

Posted Mar 14, 2022 at 07:05:40

His eligibility for parole depends on the underlying charge, his history, his prior incarcerations in the state prison system, whether he is determined to be affiliated with a gang, his behavior while incarcerated, which means that I cannot really say, how much of that time he will serve. Assuming a non-violent offense and no other negatives and good behavior, one-third is when most people would hope for.

Miyaletha Fleming Reply

Posted Mar 20, 2022 at 21:01:01

My fiancé max out of prison January 13 he had a bond of 35,000 the next day his probation started January 14 and issue a warrant for his arrest but he was incarcerated Stephens county pick him up from prison and brought him to another jail I couldn’t bond him out bc his probation violated him from old charges he already did time for so he had to do a revocation hearing they were going to send him down the road but he hasn’t yet so he has another hearing coming up He just did 2 years and 6 months in prison and when the county pick him up from prison and brought him to the jail he been in there for almost 3 months he has 3 years left on probation but does that mean the times he spent in prison and jail will he have to do 18 to 26 months since it’s 1/3

Sean A. Black Reply

Posted Mar 28, 2022 at 08:18:39

His lawyer needs to be pushing back against the State on this, especially if he submitted detainer letters through the prison while incarcerated. They knew where he was and could have come and got him to address the violation of probation before now, and, if they had, they likely would have done concurrent time.

The judge, hopefully, should not see that as reasonable if that is how it played out.

But, yes, if he goes back in the system, then the same type of parole analysis will be done on that incarceration.

Linda Reply

Posted Nov 23, 2022 at 06:54:43

A friend of mine was charged with armed robbery and false imprisonment with a rider for use of a dangerous weapon. It is also PTAC. He was arrested and had a revocation hearing which he has been sitting in prison for, however it ends at the end of January, 2023. As for the Felony Charges, they are still stretching that out. He has been to court numerous times, however he still has not been assigned an attorney and the Plea Hearing has now been postponed to March of 2023. He has a current bond of $75,000. My question is what will happen once his revocation has been served? Will he still have to sit at the jail until the felony case goes to trial or will he be released at the end of the revocation hearing? Thank you.

Sean A. Black Reply

Posted Nov 23, 2022 at 07:46:27

With the probation being revoked, the trial court has apparently not felt any urgency to do anything with the criminal case. He should apply to the public defender or indigent defense coordinator of the county where the new charges are pending. They can appoint him a lawyer, who may be able to put some pressure on and speed things up.

If he has posted bond by the time the revocation sentence is up, he would be released. If bond has not been posted, he would sit in jail until the case is resolved.

Candace Reply

Posted Nov 28, 2022 at 17:58:59

My husband have 50 years over his head for gun charges they placed him on probation… But suspended his sentence for misdemeanor charges he beat .. he went to court the next day they gave him 30 days 30 days suspended for eluding cops but also violated him the next with the revoked suspended sentence idk wat to do it’s stressing me out.

Sean A. Black Reply

Posted Nov 29, 2022 at 06:44:57

I am not clear on the sequence here or where the case occurred. The dates of occurrence and dates of sentences are very important in evaluating what happened. But, if he was already on probation at the time that he committed the offense of fleeing and eluding law enforcement, then his probation could be revoked based on his plea/conviction of the eluding offense.

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