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Probation: Revocations and Accelerations

Posted by E. W. Childers | Sep 20, 2019 | 0 Comments

In Oklahoma a lot of criminal charges end up being resolved by some form of probation. There are many reasons for this including money, money, justice, and money. But for people who are in fact guilty of some crime probation is very often a good outcome because being incarcerated is terribly damaging to just about anyone's life outcomes. But what happens when probation isn't working out so well?

Well, first we need to know what we're talking about.

A revocation can occur when a person has a suspended sentence. A defendant has a suspended sentence when they've been ordered to go to jail or prison but that sentence has been suspended. As long as they follow their Rules and Conditions of Probation they will never have to actually be incarcerated despite the order.

An acceleration can occur when a person has a deferred sentence. A defendant has a deferred sentence when the court has accepted a plea of guilty or no contest but has deferred (put off) sentencing for a set period of time (now for up to seven years in Oklahoma but formerly up to ten years). At the end of the deferment if the defendant has followed their Rules and Conditions of Probation their case will be dismissed.

A defendant who has either a Motion to Revoke Suspended Sentence or an Application to Accelerate has a significant problem on their hands. They have been accused by the district attorney of violating the conditions of their probation and are subject to being incarcerated if the court agrees with the district attorney.

Standard of Evidence

The biggest problem the defendant has is the standard of evidence for a revocation or acceleration hearing. Whereas the State must prove a new criminal allegation beyond a reasonable doubt (our highest standard of evidence), they only need to prove violations of probation by a "preponderance of the evidence" which basically means that more evidence supports the state's position than contradicts it as weighed by the court. Further, although not all courts in Oklahoma will allow this, in some district courts the state can prove the violations by hearsay, for instance by having the district attorney read a police report or a transcript of a hearing from another case.

Technical Violations v. Substantive Violations

There are technical violations and substantive violations. A technical violation is something like not having paid money or having tested positive on a drug test. A substantive violation is failure to report or committing a new crime.

Consequences of Revocation

For a revocation for a technical violation the court is not allowed to revoke the defendant's suspended sentence "in whole" meaning that if the defendant is on paper for, for example ten years, the court may not revoke him for the whole ten years although a defendant may still end up imprisoned for a large part of their sentence. Any substantive violation can result in anything from community service or weekend jail or other short (6 months) jail term to being imprisoned for the the entirety of the remaining portions of their suspended sentence.

Consequences of Acceleration

For a revocation for a technical violation the court is not allowed to accelerate the sentencing beyond certain limits: things like community service, weekends in jail, or short jail terms (up to six months) are possible. For a substantive violation (especially a new crime) it is typical for the court to impose a judgment of guilt and sentence the defendant within the range of punishment for the original crime which also includes the possibility of a suspended sentence.

Basic Mechanics of Revocations and Accelerations

Upon petition by the District Attorney the Court will issue a warrant and set a bond. Once the defendant is arrested or surrenders he is arraigned and a hearing is set within 20 days of the arraignment (unless the defendant and the state agree to waive the 20 days and set it further out). At the hearing the District Attorney and the Defendant present evidence and make arguments about the meaning of the evidence and what the Court should do. The Court then issues its ruling and it takes effect immediately. The ruling can be appealed but whether a bond on appeal is allowable depends on whether or not the violation is substantive or technical.

These things, like all other criminal cases, are subject to negotiation between the District Attorney and Defendant's counsel, though the District Attorney never has any obligation to extend an offer or actually negotiate (they negotiate generally because that is more efficient than having a hearing). Oftentimes the Revocation or Acceleration will be dismissed if the Defendant can correct the condition that led to the action being filed (e.g. the defendant tests negative for drugs or pays the money or does the community service or whatever).

Accelerations or Revocations Based on New Crimes

If the reason for the Acceleration or Revocation is a new crime the District Attorney will sometimes push or threaten to push for a hearing on the Acceleration or Revocation immediately to imprison the Defendant without bond pending the new trial. The Defendant being already on paper for a crime in the same county worsens the negotiating position of the Defendant since it's relatively easy to imprison a Defendant for a probation violation based on a new crime. The change in difficulty comes from the change in the standard of evidence. To imprison a defendant on probation based on the new crime only requires a preponderance of the evidence so the defendant can end up in prison based on evidence that may fall short of actually convicting him for the new crime, that is, a defendant may be found not guilty of the new crime, but that same evidence may still be used to accelerate sentencing or revoke him for the old crime.

About the Author

E. W. Childers

I am a husband, father, Army veteran, and attorney here in Norman, Oklahoma. I've been practicing law throughout Central Oklahoma since 2006 shortly after I graduated from the OU College of Law. In my practice I have emphasized Family Law, Criminal Defense, and Personal Injury. I like to help peo...

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