What Is the Jail Time For a Felony Probation Violation?

Posted on August 11, 2022

If you are found to be in violation of felony probation, the court can sentence you to up 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 you to up to the maximum term for the crimes for which you were 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 you were initially convicted of.

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

1. warn you and reinstate probation, or
2. modify the terms of your probation.

Felony probation, also known as formal probation in California, is an alternative to prison. It allows you to serve all or part of your sentence in the community under supervision. Felony probation typically lasts two to five years.

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.¹

What is the jail time if I violate felony probation?

There are two different outcomes regarding jail time if you violate felony probation. These are:

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

Consider, as an example, that you get 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 you to two years in jail. But the judge then suspends that jail term and awards you with formal probation. If you later violate probation, the judge can make you serve the two years in jail that went suspended.

Now, assume during sentencing, that the judge does not suspend any jail term. The judge simply puts you on probation. If you violate a condition of probation, then the judge can order you to serve the maximum jail term for hit and run (or, 3 years).²

Must a judge put me in jail if I violate a felony probation condition?

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

The judge has two other options. These are:

1. the judge can warn you and reinstate probation, or
2. the judge can modify the terms of your probation.

If the latter, the court typically imposes harsher probation conditions, in comparison to the original conditions.³

What is felony probation?

Felony probation is an alternative to the California state prison. It allows you, after being convicted of a felony crime in California, to serve your sentences out of custody so long as you 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. You as the probationer must report on a regular basis to a probation officer.

Judges look at a number of factors to determine if you 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 you were armed,
• the vulnerability of the victim, and
• whether the crime was carried out in a criminally sophisticated manner.

At your sentencing hearing in California, you can argue why you are 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.⁴

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.⁵

Legal References

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, 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.