Felony Probation – Top 8 Questions Answered

Felony probation is a sentencing alternative to prison that allows convicted felons to serve all or part of their sentence out of custody but under the supervision of a probation officer. Felony probation is also known as “formal probation.”

Not all defendants qualify. A judge determines eligibility by considering a variety of factors, such as the defendant’s criminal history and the severity of the crime committed.

A probation period typically lasts up to two years for non-violent felonies. And probation lasts up to three years for theft involving more than $25,000. During this period, the probationer must adhere to “conditions of probation.” These may include:

1. reporting to a probation officer (P.O.) on a regular basis, and
2. paying victim restitution.

If the probationer violates these conditions, then a judge may:

1. warn the person and reinstate the same terms,
2. modify the terms and include harsher conditions, or
3. revoke it and send the person to county jail or state prison.

Felony probation only applies in cases of felonies. If a person committed a misdemeanor, then a judge may award a defendant with misdemeanor probation.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is felony probation?
• 2. Who is eligible?
  • 2.1. Department reports
  • 2.2. People not eligible
  • 2.3. People probably not eligible
• 3. How long does formal probation last?
• 4. What are some common conditions?
• 5. What happens if a person violates felony probation?
• 6. What about an expungement after completion of probation?
• 7. Can a person move or travel during it?
• 8. Can a judge terminate probation early?

1. What is felony probation?

Felony probation is a criminal law alternative to a prison sentence in certain felony cases.

Convicted felons do not serve time in state prison for their offense. Rather, they serve their sentence:

• out of custody,
• in the community, and
• under supervision.

Note that felony sentencing guidelines give a judge the option to impose either:

• a prison term, or
• probation.

If the latter is awarded, the judge either:

• suspends execution of the prison sentence (if the judge gives one), or
• places the accused on probation without handing out prison time.

2. Who is eligible?

Eligibility depends on many factors. Eligibility factors include:

• the seriousness of the felony offense committed (violent crimes vs. victimless offenses),
• whether the defendant was armed,
• the victim’s character,
• the degree of monetary loss to the victim,
• whether the defendant’s crime involved a complex plan,
• the defendant’s prior record before the felony conviction,
• the accused’s attitude about probation, and
• the likely effect of imprisonment on the defendant.¹

At the sentencing hearing the defense argues that these factors weigh in favor of granting probation rather than imposing state prison.

The prosecutor may:

• agree, or
• argue the opposite and say that prison is more appropriate.

Ultimately, the judge makes the choice.

2.1. Department reports

The judge must order a probation report from the county probation department. The judge reviews and considers this report before imposing the sentence.

The department evaluates the defendant’s eligibility and then recommends:

1. the appropriateness of probation, and
2. the length and conditions of probation.²

In preparing the report, the department interviews:

1. the alleged victim, and
2. the officer that investigated the case.

Note, however, that in the end, the judge makes the final decision as to whether to grant probation.

The report serves as a tool to help decide these issues.

2.2. People not eligible

People convicted of certain crimes cannot get felony probation.

A person is ineligible if:

1. he/she is convicted of a felony, and
2. the person has a prior conviction for either:

a. a violent felony under Penal Code 667.5 PC, or

b. a serious felony under Penal Code 1192.7 PC.³

A person is also not qualified for probation if:

1. he/she is convicted of a serious or violent felony, and
2. the person commits the offense while on felony probation.⁴

Certain sex crimes may also render a defendant ineligible. This is true if there are aggravating factors surrounding the crime.⁵

2.3. People probably not eligible

The law says that defendants who commit certain other offenses generally should not be granted probation. Some examples of these include offenses where the defendant:

• inflicted great bodily injury on the victim,
• used a deadly weapon,
• hurt or killed someone in a drive-by-shooting, a crime per Penal Code 26100 PC, and
• furnished PCP.⁶

3. How long does formal probation last?

Felony probation generally lasts up to two (2) years for most non-violent felonies. Probation can last up to three (3) years for the following crimes involving more than $25,000:

• Grand theft (PC 487(b)(3))
• Embezzlement (PC 503)
• False personation and cheats (PC 532a)

These two- or three-year probation limits do not apply to violent felonies or to crimes for which their statute specifies a certain probation period.⁷

4. What are some common conditions?

Some common felony offender probation conditions involve:

• required meetings with a P.O.,
• the payment of restitution,
• submission to drug testing, in cases of certain drug crimes,
• performance of community service,
• abstaining from alcohol (especially in DUI cases),
• completion of a treatment program,
• community supervision,
• counseling (such as sex offender, anger management, or domestic violence counseling)
• an agreement to submit to police searches,
• payment of court costs, and
• an agreement not to violate any laws.

A defendant commits a probation violation if he/she violates a condition of probation.

Note that the above are just a few examples of conditions in the criminal justice system. A judge can order any type of requirement as a term. This is true if the term is:

1. reasonable, and
2. logically related to the offense committed.⁸

5. What happens if a person violates felony probation?

The court will hold a probation violation hearing. There are several possible consequences for a felony probation violation. The court can:

1. warn the person and reinstate the same terms,
2. modify the terms and include harsher conditions, or
3. revoke it and order county jail time or state prison time.

Example: Peter is convicted of a felony violation of Penal Code 273.5 PC, corporal injury on a spouse in Los Angeles. At his sentencing hearing, the judge imposes a sentence of the middle term for that offense (three years in prison) but suspends execution of that sentence and places Peter on felony probation for a three-year period of time.

Peter violates the terms on several occasions. After the first time and second time, the judge at the revocation hearing gives Peter a break and modifies his terms to make it stricter. However, when that does not work, the judge revokes Peter’s probation and executes the initial sentence. Peter must go to prison for three years.

6. What about an expungement after completion of probation?

A defendant can obtain an expungement of a criminal offense if:

1. he/she completes the term, and
2. does so without violating a condition.

Note, though, that a judge may (in his or her discretion):

• grant an expungement of the criminal record, and
• even do so if the defendant violated a term.

Expungements remove many of the hardships of a conviction.

7. Can a person move or travel during it?

Felony probation often involves restrictions on moving and travel.

In general:

• if a probationer wants to move, he/she must first get court approval, and
• if a probationer wants to travel, he/she must first get the P.O.’s consent.

8. Can a judge terminate probation early?

Penal Code 1203.3 PC allows a judge to:

1. terminate a defendant’s probation, and
2. do so ahead of schedule.⁹

A requirement of early termination is that the defendant:

1. complete at least 18 months of the term, and
2. do so without violating a condition.¹⁰

In addition, the petitioner must also demonstrate to the court that:

1. the probationer successfully completed the terms, and
2. there are factors that justify early termination.

Examples of the latter include:

• the inability to secure gainful employment, or
• the need to travel for work.

For additional help…

For information on Colorado, please see our article on “A Guide to Felony Probation in Colorado.”

Legal References: