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Limits on Revocations of Probation

Posted by Sean A. Black | Apr 08, 2013 | 3 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.


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.

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