Criminal Law Newsletter

Terms & Conditions OF Probation

A trial judge generally has discretion whether to grant probation to a defendant. The trial judge also has discretion to determine the terms and conditions of the defendant's probation. Only the trial judge that presided over the defendant's trial has the authority to determine the terms and conditions of the defendant's probation, unless the trial judge transfers jurisdiction of the defendant's case to another court. Although a jury may recommend probation for a defendant, the jury does not have the authority to determine the terms and conditions of the defendant's probation.

In some states, the terms and conditions of a defendant's probation are classified as discretionary or as mandatory. In those states, a trial judge has discretion to provide that the defendant may not commit another offense while on probation, that the defendant must avoid certain habits, that the defendant must avoid certain persons or places, that the defendant must report to a probation officer on a regular basis, that the probation officer is entitled to visit the defendant's home, or that the defendant must obtain suitable employment. The trial judge also has the discretion to provide that the defendant must pay all court costs, fines, and restitution; that the defendant must perform a certain number of hours of community service; that the defendant must submit to alcohol or drug testing; or that the defendant must participate in counseling or therapy sessions. The trial judge may also impose any other reasonable condition that protects the community, that protects a victim, or that punishes, rehabilitates, or reforms the defendant.

In states that set forth mandatory conditions for a defendant's probation, a trial judge may be required to order the defendant to obtain a certain educational level, if the defendant fails to demonstrate that he or she has obtained that certain educational level. The trial judge may also be required to order the defendant to perform a certain number of hours of community service. The defendant is only exempt from performing community service if he or she is physically or mentally incapable of such service, if he or she is confined in a substance abuse facility, or if other good cause is shown. The amount of community service that must be ordered by the trial judge depends upon the offense of which the defendant was convicted.

If a defendant is determined to be mentally ill, a trial judge may require the defendant to be treated in mental health facility as a condition of his or her probation. If the defendant has been convicted of stalking a victim, the trial judge may order the defendant to not communicate with the victim or to not go near the victim's residence or place of employment. If the defendant has been convicted of a sexual offense for which the defendant is required to register as a sex offender, the trial judge may order the defendant to provide a blood sample in order to create a record of the defendant's DNA. If the defendant has been convicted of an alcohol or a drug offense, the trial judge may order the defendant to submit to blood and urine testing or to participate in alcohol or drug educational programs, treatment programs, or counseling sessions.

A defendant must be notified of the terms and conditions of his or her probation. Any terms and conditions that are imposed by a trial judge must be specific. The trial judge may not impose terms and conditions that interfere with the defendant's constitutional rights. Terms and conditions of the defendant's probation may be deemed to be invalid if they are not related to the defendant's offense, if they are related to conduct that is not criminal, or if they do not serve the objectives of probation.

Most states require a trial judge to order a defendant to pay a monthly fee to his or her probation officer while he or she is on probation. However, the trial judge may waive or reduce the fee if the fee would cause severe financial hardship to the defendant. The trial judge may order the defendant to pay fines, court costs, and restitution to the victim of the defendant's offense. Although the amount of restitution that is required to be paid by the defendant is generally discretionary, the trial judge must have a factual basis for the amount of restitution. The trial judge must determine the rate at which the restitution shall be paid, such as weekly or monthly. If the defendant has been ordered to pay restitution to the victim, his or her bankruptcy will not discharge the restitution.

A defendant has a right to appeal the terms and conditions of his or her probation. In the event of an appeal, an appellate court will determine whether a trial judge abused his or her discretion in setting forth the terms and conditions of the defendant's probation.