Revocation-Proof Convictions

According to data from the Division of Community Corrections, 1270 probationers had their probation revoked in December 2010. Of those, 232 revocations were based on new crimes. I’ve written before about some of the issues associated with new criminal charges as a violation of probation, a post you can read here. To sum that post up, if a court is going to proceed with a probation violation hearing before the defendant has pled to or been tried on a new criminal charge, it must make an independent factual finding that the defendant committed the alleged criminal act. The revocation should not be based on the mere fact that the probationer has been charged. Many probationers do get their day in court on new criminal charges before any related probation hearing on the matter. Sometimes, even when a probationer is convicted of a new charge, the court entering judgment on the conviction will write on the judgment something like “THIS CONVICTION SHALL NOT VIOLATE THE DEFENDANT’S CURRENT PROBATION,” perhaps also identifying the file number of the preexisting suspended sentence. Does the court sentencing the new conviction have the power to do that? It’s not clear to me that it always does. A probationer who is convicted of a new crime other than a Class 3 misdemeanor has almost certainly violated the “commit no criminal offense” condition of probation. So the question is not whether it’s a violation, but rather what the court hearing any ensuing probation violation will choose to do in [...]