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Probation Violation

A probation violation is a separate offense from the underlying original crime for which the defendant was charged. Once a person is sentenced to probation (usually in lieu of jail or prison), he or she must fully comply with all of the terms of probation as set by the judge. If a probationer fails to pay all fines and costs, commits another offense, fails to attend counseling or other court ordered classes, they can be "violated" by the probation officer and the matter will be scheduled for a hearing before the original judge. [see below for a full explanation of probation procedures and rights].

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A defendant, placed on probation by the sentencing judge, is given the opportunity to avoid jail or prison by conforming to the conditions set by the judge at sentencing. As discussed on the "Probation" page, the probationer is supervised by a probation officer (or agent) to ensure the offender complies with all aspects of the court's order. 

What happens if the probationer violates the terms of probation? 
If, during the probation period, the judge determines the offender is again engaging in criminal behavior or failing to comply with any of the probation conditions, the court may revoke probation and sentence the defendant to jail or prison.

Prior to probation being revoked, Michigan Codified Law 771. (MCL 771.4, see full statute below, emphasis added) provides: "the probationer is entitled to a written copy of the charges constituting the claim that he or she violated probation and to a probation revocation hearing".  

Further, Michigan Court Rule, 6.445, PROBATION REVOCATION, states the following:

(A) Issuance of Summons; Warrant. On finding probable cause to believe that a probationer has violated a condition of probation, the court may 

(1)  issue a summons in accordance with MCR 6.103(B) and (C) for the probationer to appear for arraignment on the alleged  violation, or 
(2)  issue a warrant for the arrest of the probationer.

An arrested probationer must promptly be brought before the court for arraignment on the alleged violation.  

(B) Arraignment of the charge. At the arraignment on the alleged probation violation, the court must

(1)  ensure that the probationer receives written notice of the alleged violation, 
(2)  advise the probationer that 

(a) the probationer has a right to contest the charge at a hearing, and
(b) the probationer is entitled to a lawyer's assistance at the hearing and at all subsequent court proceedings, and that the court will appoint a lawyer at public expense if the probationer wants one and is financially unable to retain one,

(3)  If requested and appropriate, appoint a lawyer, 
(4)  determine what form of release, if any, is appropriate, and
(5)  subject to subrule (C), set a reasonably prompt hearing date or postpone the hearing.   

...(E)  The Violation Hearing. 

(1)  Conduct of the Hearing. The evidence against teh probationer must be disclosed to the probationer. The probationer has the  right to be present a the hearing, to present evidence, and to examine and cross-examine witnesses. Teh court may consider only   evidence that is relevant to the violation alleged, but it need not apply the rules of evidence except those pertaining to privileges. The     state has the burden of proving a violation by a preponderance of the evidence. 
(2)  Judicial Findings.  At the conclusion of the hearing, the court must make findings in accordance with MCR 6.403.

...(G)  Sentencing. If the court finds that the probationer has violated a condition of probation, or if the probationer pleads guilty to a violation, the court may continue probation, modify the conditions of probation, extend the probation period, or revoke probation and impose a sentence of incarceration. The court may not sentence the probationer to prison without having considered a current presentence report and having complied with the provision set forth in MCR 6.425(B) and (E). 
Michigan Department of Corrections policy requires the supervising agent to respond to each violation of the court's order committed by the probationer.  It does not have to be a violation of every condition. Violating even one condition is enough to require a hearing and possible revocation of probation. The number and severity of the violations along with the risk to public safety are all taken into account. The probation officer will craft a violation response that takes into consideration these violations along with the probationer's adjustment to supervision. This approach allows the probation agent to choose among a range of interventions to help keep the probationer on track and on probation. However, in all cases, the agent must make a recommendation to the judge and impose the least restrictive response that is consistent with public safety. It sometimes amazes me how many times a person will be "violated" by probation and the court continues to allow the defendant to remain on probation. The court does of course, grow tired of seeing the same defendant come before the court on repeated violations. At some point the judge will revoke probation, discharge the defendant from probation "without improvement" and sentence them to jail or prison.


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