Probation is one of the most common alternatives to incarceration and 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 know what this sentence entails and how summary and formal probation differ. This overview offers a simple primer, but if you have more questions, call a lawyer.
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 what type of probation you are sentenced to.
What are The Two Types of Probation in CA?
California has two levels of probation, one for those convicted of misdemeanors and one for those found guilty of felonies. Probation is optional, and while most people prefer it to incarceration, some would rather serve their sentence behind bars and then have total freedom when released.
Summary, sometimes called “informal,” probation is generally given for misdemeanor crimes. It is much less restrictive as it only requires following a few basic rules and avoiding further legal trouble.
Formal probation is reserved for felony convictions, as it involves a more stringent set of rules, including making scheduled visits with a probation officer and regular drug and alcohol testing. Those on formal probation may also be required to wear an ankle bracelet to monitor their location.
What is Summary Probation Under California Law?
Summary probation is for offenders who were convicted of a misdemeanor-level offense. In some cases, if the crime was a wobbler, meaning it could be a felony or misdemeanor, your lawyer can arrange for you to serve summary rather than formal probation by having the charges reduced to a misdemeanor. The main difference between summary and formal probation is that the former has less rigid restrictions.
During your probationary period, you will not have to check in with a probation officer regularly, 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 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 informal probation is that you cannot be arrested or charged with another crime, although infractions usually do not count.
What is Formal Probation in California?
Formal probation is much more serious and strict than informal probation and requires 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 with them at regularly scheduled intervals for the entire term of your agreement. Generally, these appointments will be once a week when you are first released and then less frequent as time passes.
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. Sometimes, those sentenced under this program must wear a GPS tracking monitor or face travel restrictions. Moving outside the county requires 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.
How Long Does Probation Last?
Usually, summary probation only lasts one year, while formal probation lasts two years. Whether the case involves a misdemeanor or felony, the judge can require a defendant to serve some jail time and then spend the remainder of their sentence out of custody. If someone is sentenced to probation, the maximum jail term is one year, regardless of whether the offense was a felony or misdemeanor —though this maximum jail time is typically reserved for those convicted of serious felonies.
There are exceptions when probation may last longer than the standard one- or two-year term. These include:
- The penal code specifies a unique probation period —for example, the probation for a DUI lasts between 3 and 5 years
- A financial crime involving over $25,000 —probation for these offenses usually lasts 3 years
- The offense was a violent felony
What is the Difference Between Probation and Parole?
Probation and parole are very similar, which is why so many people confuse them. Both allow a person convicted of a crime to remain outside of jail or prison as long as they follow the rules of their program. The difference is that probation is given as part of a criminal sentence when an individual is originally convicted, whereas parole is granted through a hearing with the California parole board. Probation allows individuals to serve part or all of their sentence outside of jail or prison, while parole permits a person sentenced to prison to be released early.
What Happens if You Violate the Terms of Your Probation?
Because probation is a conditional release from jail, if you violate the terms of your agreement, 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 can 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 have been accused of a crime that may result in probation, criminal defense attorney Peter M. Liss can help. Please call (760) 643-4050 to schedule a free initial consultation.