What Is the Jail Time For a Felony Probation Violation?

Posted on December 18, 2020

If a defendant is found to be in violation of felony probation, the court can sentence the person to the amount of jail or prison time that was suspended at sentencing. If there was no custody time suspended, then the court has the discretion to sentence the defendant for up to the maximum term for the crimes for which he or she was convicted.

The jail time for a felony probation violation is either:

1. the jail time that was suspended before probation was ordered, or
2. if no suspension, the maximum jail time for the offense the defendant was initially convicted of.

Note that a judge does not automatically have to place a party in jail if that person commits a felony probation violation. Two other options exist. These are that the judge can:

1. warn the defendant and reinstate probation, or
2. modify the terms of the defendant’s probation.

Felony probation, also known as formal probation in California, is an alternative to prison. It allows someone convicted of a felony to serve all or part of his or her sentence in the community under supervision. Felony probation typically lasts .

Formal probation often includes some of the following conditions:

• meetings with a probation officer as often as required, generally once a month,
• payment of restitution, and
• participation in individual or group therapy.

What is the jail time if a person violates felony probation?

There are two different outcomes regarding jail time if a person violates felony probation. These are:

1. the person gets sentenced to the jail time that was suspended before probation was ordered, or
2. if no suspension, the person gets the maximum jail time for the offense that he was initially convicted of.

Consider, as an example, a defendant that gets convicted of felony hit and run in the State of California, per VC 20001. As a felony, this offense is punishable by imprisonment for:

• 16 months,
• 2 years, or
• 3 years.

Assume, during sentencing, that the judge sentences the defendant to two years in jail. But he then suspends that jail term and awards the felon with formal probation. If the party later violates probation, the judge can make him serve the two years in jail that went suspended.

Now, assume during sentencing, that the judge does not suspend any jail term. He simply puts the felon on probation. If the party violates a condition of probation, then the judge can order him to serve the maximum jail term for hit and run (or, 3 years).

Must a judge put a felon in jail if he violates a felony probation condition?

A judge does not have to place a person in jail for a felony probation violation.

The judge has two other options. These are:

1. he can warn the defendant and reinstate probation, or
2. he can modify the terms of the defendant’s probation.

If the latter, the court typically imposes harsher probation conditions, in comparison to the original conditions.

What is felony probation?

Felony probation is an alternative to the California state prison. It allows people convicted of a felony crime in California to serve their sentences out of custody so long as they comply with probation conditions imposed by the judge and probation officer.

Felony probation typically lasts up to two years for non-violent felonies and three years for theft of more than $25,000. Probation can be longer for violent felonies. The probationer must report on a regular basis to a probation officer.

Judges look at a number of factors to determine if someone should be placed on probation rather than put in prison for a felony conviction. Some of these include:

• the seriousness and circumstances of the crime compared with others like it,
• whether the defendant was armed,
• the vulnerability of the victim, and
• whether the crime was carried out in a criminally sophisticated manner.

At the defendant’s sentencing hearing in California, the defendant can argue why he or she is amenable to probation and should be placed on felony probation instead of being incarcerated. Note that the prosecutor has an opportunity to argue the opposite – why state prison would be a more appropriate punishment than felony probation. Ultimately, the judge decides the issue.

What are some common felony probation conditions?

Felony probation often includes conditions such as the following:

• meetings with a probation officer,
• payment of restitution,
• participation in individual or group therapy,
• submission to drug testing, in cases of certain drug crimes in California,
• performance of community service or community labor, and
• agreement to submit to peace officer searches (with or without a warrant).

These are just examples of common probation conditions. There could be others, so long as they are reasonable and logically related to the offense at hand. Judges have wide discretion to come up with probation conditions that are fitting and proper to the end that justice may be done.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.