Chicago Sentence Violation Attorneys
Sometimes a person is fortunate enough to have his criminal case dismissed. Perhaps upon the motion of the prosecutor; because the state was unable to prosecute the case without witnesses, because of a court order suppressing certain evidence at a trial, because it was unable to prove the charges beyond a reasonable doubt; or by order of the court on a motion to dismiss an indictment.
But other than these possibilities, there are typically only two possible outcomes for a criminal case: a finding of guilty or a finding of not guilty. If there is a finding of guilty, either by way of a plea or after a trial, then the court must enter a sentence against the defendant. Although all misdemeanor and felony cases are punishable by periods of incarceration, the most common dispositions involve alternatives to prison or jail time and these are known as probation, conditional discharge, or court supervision.
Since 1990, Mitchell S. Sexner & Associates LLC has successfully represented thousands of defendants like you who have been charged with violations of a court sentence. Call (800) 996-4824 for free information about cases in Chicago or anywhere in Illinois.
Among possible sentences after being found guilty, probation and conditional discharge are considered convictions of record, and supervision is a form of deferred judgement that is not a conviction. If supervision is successfully completed, it results in a discharge and dismissal similar to a finding of not guilty.
As long as a defendant complies with the terms and conditions of his sentence, the successful completion ends any further obligation to the court and no further punishments are handed out. But when there is an alleged violation of probation, conditional discharge, or supervision, the defendant may be in for trouble.
Standard Sentencing Conditions
These standard conditions apply to every case of probation or conditional discharge:
- Don’t violate any criminal laws of any jurisdiction.
- Report to a person or agency as directed by the court.
- Don’t possess any handguns or dangerous weapons (on felony cases or misdemeanors involving bodily harm).
- Don’t leave Illinois without the permission of the court; or when it’s an emergency, without the approval of a probation officer.
- Consent to visits at your home or elsewhere by a probation officer.
- Perform community service for offenses related to street-gang activity or membership.
- Obtain a high-school diploma or G.E.D, under certain circumstances.
- Undergo substance-abuse treatment, for some additions.
- Obey miscellaneous provisions related to sex offenses that regulate and restrict where and with whom offenders may reside, have contact with, etc.
- Surrender any FOID card upon any felony conviction or for certain violent misdemeanors.
Optional Sentencing Conditions
Judges have wide latitude when setting the terms and conditions of a sentence and are really only limited to their own imaginations (subject to certain obvious restrictions, such as "the punishment may not be cruel and unusual"). Some optional conditions that a judge may impose include:
- Periodic imprisonment.
- Pay fines and costs.
- Maintain employment, attend school, or obtain vocational training.
- Obtain medical, psychological, psychiatric or drug/alcohol treatment.
- Live in a halfway-house type of setting.
- Support your dependents.
- If a minor, reside with your parents, attend school, a youth program, or contribute to your support.
- Pay restitution to the victim(s).
- Perform public service hours.
- Home confinement.
- Comply with an order of protection.
- Donate to a local anti-crime program.
- Stay away or have no contact with certain people or places.
- Zero tolerance for drugs or alcohol.
When it comes to supervision, there are no mandatory conditions other than for offenses involving street-gang activity, where a court must order certain hours of public service as a condition. Otherwise, a judge may impose, at his or her discretion, any combination of conditions that would be allowed under a period of probation or conditional discharge (except jail). That is because any period of incarceration constitutes a conviction and supervision is specifically not a conviction.
As long as you correctly complete the conditions of a sentence, there will be a successful termination and closure of the case. However, if there is a failure to comply with conditions, then a "petition to revoke the sentence" will follow.
In cases of probation, this petition for violation (which is the paper explaining what you did wrong or what you failed to do) is sent from the probation department to the offender. In cases of conditional discharge or supervision, the paperwork is mailed out by the clerk of the circuit court.
Arrest Warrant May Be Issued
In cases where the court believes that a defendant may cause further harm or run away, or when he or she fails to respond to a notice to appear, the court may decide to issue an arrest warrant. If this happens, the defendant has the right to be admitted to bail pending the outcome of the petition, which means that you generally are allowed a chance to post bail (money or property) so that you can stay out of jail while the case goes on.
Sometimes, however, a judge may refuse to set bail and may take the defendant into custody. If the alleged violation is based upon a new alleged criminal offense, then bail must be set pursuant to the provisions of the Code of Criminal Procedure and the provisions of the Illinois Speedy Trial Act.
If a person is incarcerated based upon an alleged sentence violation (such as failure to report to probation), then the hearing must be held within 14 days of when he or she first went into custody, with certain exceptions.
Burden of Proof on a Sentence Violation
The state has the "burden of proof" on a sentence violation, which means that it must prove the case against you by what is referred to as a "preponderance of the evidence." A preponderance standard means that something is "more likely true than not true."
When the state proceeds to a hearing on the petition to revoke a sentence, the trial will be by a judge, not a jury. The hearing must be held in open court and you will have the right to counsel, to confront witnesses against you, and to cross-examine any witnesses just like in a normal trial.
Although not mentioned in the statute, a defendant also certainly has the right to remain silent, to not testify, and to not have that silence used against him. Also, the right to testify, to compel witnesses to testify on your behalf, and to present other relevant evidence in your own defense, are also rights that a defendant has in a sentence violation hearing.
Prosecutor Has a Choice How to Proceed
When it comes to violations based on an alleged new offense, the state has the option to proceed to trial on the new charges first (which then must be proven "beyond a reasonable doubt") or they may choose to proceed on the alleged sentence violation (which must be proven by a preponderance of the evidence in front of the court that originally issued the sentence). This choosing process is called an "election."
Although in most cases (especially those where the new offense is alleged to have occurred in another county or state) the state usually elects to proceed on the new charges first, it is not uncommon for the state to go on the violation first. It’s also possible to try both cases at the same time, but the state usually doesn’t do that because a finding of not guilty on the new charge would result in a dismissal of the sentence violation on double-jeopardy grounds.
Judge Has Great Discretion When Sentencing
When it comes to certain technical violations of a sentence (such as probation), it’s within the discretion of the supervising probation officer to decide whether to sanction the offender internally without filing a petition with the court. Then, as long as the offender is in compliance with these additional sanctions, no actual violation will occur. This is generally much better for the person on probation than having the violation filed with the court - any day you can avoid appearing in front of a judge is a very good day. But when a violation is filed with the court and either admitted to or proven in court after a hearing, it is then up to the sentencing judge what happens next.
A judge has a great deal of discretion when it comes to re-sentencing a defendant. For a violation of supervision, a judge could recommit someone to an additional period of supervision with any additional conditions that may apply. He or she could also enter a conviction and terminate the supervision unsatisfactorily; or enter a judgment of conviction with a fine only; or commit the defendant/respondent to a jail sentence for a period of time up to the maximum term allowed for the original offense.
Talk to an Experienced Sentence Violation Attorney
If you have been accused of violating the terms or conditions of a sentence, whether it was supervision, conditional discharge, or probation, you will need the services of a smart, aggressive, hard-working Chicago criminal defense attorney to help you defend yourself properly. The lawyers at Mitchell S. Sexner & Associates LLC have offices located in Chicago and Arlington Heights and can meet you in other locations as well. We offer a free initial consultation, absolutely confidential and with no obligation. Call us today and see how we may be able to help you in your time of need. Don’t delay; call (800) 996-4824 now.