Probation is one of the most common alternatives to incarceration and in fact, one of the most common sentences for both felonies and misdemeanors in California. But while people are usually familiar with the term, many don’t actually know what probation entails and what the difference between summary and formal probation is. This overview offers a simple primer, but if you have more questions, San Diego probation lawyers can help.
What is Probation?
Probation is an alternative to incarceration that allows offenders to be released from jail (or avoid serving time altogether) as long as they follow certain rules. Probation allows the judge to sentence a defendant to up to one year in jail for felonies and some misdemeanors. A sentence to state prison means a judge denied probation on a felony.
How strict the rules are, how long your probation will last and how many rules you will need to follow will depend in part on whether or not you are sentenced to formal or summary probation. Typically, probation is for three years and five years for some DUI’s. Additionally, judges will consider your criminal record, personal issues (such as drug use) and the crime you have been charged with when setting the terms for your probation.
Because probation is a conditional release from jail, if you violate your probation, you can end up right back behind bars. You then can be sentenced up to the maximum length of the crime. If you have been accused of violating probation though, you will be given the option to defend yourself in a hearing. Unfortunately, because this is a hearing and not a trial, you are not presumed innocent and you are not offered the option of a lawyer if you cannot afford one, although you can choose to be represented by an attorney if you choose.
Summary Probation Sentences
If you were charged with a misdemeanor you will be sentenced to summary probation in most cases, also sometimes called informal probation. In some cases, if the crime was a wobbler, meaning it could be a felony or misdemeanor, your lawyer may be able to arrange for you to serve summary rather than formal probation if charges are reduced to a misdemeanor. The biggest difference between summary and formal probation is that summary probation has less rigid restrictions.
During your probationary period, you will not have to check in with a probation officer on a regular basis, although your progress will be monitored from time to time to make sure you are following the rules of your release. The terms of summary probation will vary greatly from one case to another and may include paying restitution to the victim, completing community service, attending substance abuse programs, etc. One of the only universal rules of summary probation is that you cannot be arrested or charged with another crime, although infractions usually do not count.
Formal Probation Rules
Formal probation is much more serious and strict than summary probation and will require you to register with the probation department within days of your release from jail or prison. You will then be assigned a probation officer and be required to check in him or her at regularly scheduled intervals for the entire term of your probation. Generally these appointments will be once a week when you are first released and then less frequent as time wears on. You may be allowed to check in by mail if you are successful on probation.
Like summary probation, the specifics of your agreement will be based on your crime, criminal history and more. For example, if you have been convicted of corporal injury to a spouse or inhabitant, the more serious of domestic violence charges, you may be required to undergo an anger management program, obey your partner’s restraining order, pay restitution to the victim, surrender all of your firearms and more. In some cases, probation will involve the use of a GPS tracking monitor or limit your ability to travel. In fact, moving outside the county will require the approval of the court.
Additionally, anyone serving formal probation can be subjected to warrantless searches of their cars, bodies, homes or belongings at any time. They can also be asked to take a drug or alcohol screening at any time.
If you have been accused of a crime that may result in probation or of violating your probation or if you have any other questions about the difference between summary and formal probation, Peter M. Liss can help. Please call (760) 643-4050 to schedule a free initial consultation.
