When someone is on deferred adjudication or probation, he or she is required to follow certain terms and conditions. If a person fails to abide by these conditions, the State may file a motion to adjudicate guilt or revoke probation. Once the State files the motion, there are a few options – (1) have a hearing before the judge and make the State prove the violations, (2) request a reinstatement from the court, (3) enter a plea of “true” to the violations with or without a plea bargain.
(1) If you opt to have a hearing, the State must prove to the judge that you violated the terms and conditions of probation according to the motion filed by the State. There are no juries allowed for revocation hearings. The burden of proof for the State is a “preponderance of the evidence”, which means more likely than not. For example, if the State alleges that a person failed to perform community service, the State would have to put on evidence of that, and if the judge believe it is more likely true than not, the judge will find it true and assess punishment.
(2) Reinstatement is what most people want when it comes to probation violations. Whether the judge will reinstate a person depends on many factors including the type of violation, the crime for which a person is on probation, and any mitigating factors. Reinstatements are 100% discretionary with the judge – there is no legal obligation to do so. When seeking a reinstatement, it is essential to have a skilled lawyer with knowledge and experience with probation violations. A qualified attorney knows what type of information judges look for and consider when determining whether a reinstatement is possible.
(3) In some courts, the prosecutors are permitted to plea bargain with people who are alleged to have violated their probation. In other courts, the judge will not allow the State to plea bargain. This simply depends on the judge. Even if the judge does not allow the State to plea bargain, some judges will indicate what the sentence would be if a person pleads “true” to the violations. Whether pleading true or not will lead to the best outcome depends on the facts of a particular case. Once again, it is crucial to have a qualified and knowledgeable criminal defense attorney before entering a plea.