New Criminal Offenses as a Probation Violation: Different Results at Violation Hearing and Trial

Committing a new criminal offense while on probation is a violation of probation. Nowadays it’s one of the only things for which a person may be revoked. Sometimes the parties wait to see whether a new criminal charge will result in a conviction before proceeding on it as a violation of probation. Sometimes they don’t. Either way, when you have two different courts (the probation court and the trial court) considering roughly the same issue (did this person commit a crime?), you run into issues like double jeopardy, collateral estoppel, and inconsistent results. Today’s post considers some of the possibilities. Conviction, then violation. If a defendant is convicted of a new crime committed while he or she was on probation, the ensuing probation violation hearing should be straightforward. If the crime has been pled to or proved beyond a reasonable doubt, there should be no trouble proving it to the probation court’s reasonable satisfaction. There may yet be technical reasons the conviction should not result in a finding of violation. For example, the crime may not have happened while the defendant was actually on probation, the violation report may not have been filed (and stamped) before the probation term expired, or the conviction might have been for a Class 3 misdemeanor (for which revocation is not allowed). But in the absence of any of those wrinkles, the hearing should be relatively easy for the State. There is no double jeopardy concern if the probation court chooses to revoke. The probation violation [...]