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  • Probation – Walnut Creek

    Probation is a type of sentencing by which a trial court suspends the imposition of imprisonment and releases a defendant into the community based upon certain conditions. Probation is an alternative to imprisonment. Probation is similar to parole because it grants freedom from incarceration. However, probation is different from parole because it is granted in lieu of incarceration and is not an early release after a period of incarceration, such as with parole. Probation is granted and supervised by the trial court that sentences a defendant. Parole is granted and supervised by an administrative agency of a state, such as a parole board. Probation is usually granted to a defendant based upon certain conditions. Such conditions include a restriction of the defendant's activities, employment on the part of the defendant, observance of the law, and monitoring of the defendant's behavior by a probation officer. Whether a defendant is entitled to probation in lieu of incarceration depends upon each state's statutes. A defendant has no constitutional right to probation. Although each state's statutes set forth the defendant's eligibility for probation, the granting of probation is generally discretionary on the part of a trial court. Only a court that tries a defendant for an offense is entitled to grant probation on behalf of the defendant. That court is also entitled to set the terms and conditions of the defendant's probation. However, the court may transfer jurisdiction of the defendant's case to another court or it may delegate its authority to modify or to supervise the defendant's probation to a probation officer in another jurisdiction. A jury is not entitled to grant probation to a defendant. The jury may only recommend that probation be granted to the defendant. Only a trial court is entitled to grant probation to the defendant or to set the terms and conditions of the defendant's probation.

    Types of Probation

    There are generally three types of probation. The first type of probation is regular probation. In this type of probation, a defendant is convicted of an offense and is given a term of imprisonment that is immediately suspended. The defendant is placed on probation in lieu of imprisonment. The second type of probation is deferred adjudication probation. In this type of probation, the defendant is placed on probation without a finding of guilt. The third type of probation is continuing jurisdiction probation or "shock" probation. In this type of probation, the defendant is convicted and sentenced to a term of imprisonment. The defendant serves a certain amount of his or her sentence after which time the remainder of the defendant's sentence is suspended and the defendant is placed on probation. A trial court has authority to modify, to reduce, to terminate, or to revoke a defendant's probation. If the defendant's probation is modified, the terms and conditions of the probation are changed. If the defendant's probation is reduced or terminated, the defendant is no longer on probation. If the defendant's probation is revoked, the defendant is usually required to serve the remainder of his or her sentence in a correctional institution.

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