(Another post in our continuing series on Cleaning up your Criminal Record) www.martell-law.com
Petition to Terminate Probation Early
In most criminal cases, when a person is convicted of either a felony or a misdemeanor in California, the Court will release the defendant on probation after completion of their jail sentence, and/or in lieu of jail time. The term of probation generally ranges between 1 to 5 years, depending on the nature of the conviction. In California, someone who has been placed on probation may Petition the Court to terminate their probation early, if that person can convince the Court that they have shown good conduct and have reformed since the crime was committed. In this post, we will be discussing the different types of probation, who is generally eligible to have their probation terminated early, and the general process for petitioning the Court to terminate probation.
The different types of Probation
There are essentially two general types of probation: 1) Formal (sometimes referred to as Felony probation), and 2) Informal (sometimes referred to as misdemeanor, unsupervised, or summary probation). The two different types of probation can be granted in either a misdemeanor or a felony case, depending on the negotiated settlement or the sentence imposed by the Judge, thus, we will refer to them as Formal and Informal probation in this post.
Formal probation, which is typically reserved for Felony cases, typically lasts between 3 and 5 years. When a defendant is on Formal probation, they must report to a probation officer, pay restitution to any victims involved, pay the courts fines, and comply with any other terms, such as attending classes, that the Court may impose. If a defendant violates probation, the Judge may send the violator to prison. If a person is unsuccessful in terminating their Formal probation early, the Court may order that the probation terms be modified to informal probation, for the remainder of the probationary period.
Informal (Summary) Probation, which is typically used in misdemeanor cases, usually lasts between 1 to 3 years. With informal probation, the defendant is not required to check in with a probation officer, and may only be required to appear in court periodically for progress checks. This form of probation is less severe, and is typically less difficult to terminate early than formal probation.
Who Qualifies for an Early Termination of Probation?
California Penal Code Section 1203.3 states in pertinent part: “The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held.”
This essentially means that if you were placed on probation, you are likely eligible to at least petition the court to terminate probation early, or modify your probation terms. Judges have wide discretion in modifying and terminating probation, so you will need to have a compelling reason for the judge to even consider doing so. As a general rule however, the judge will at the very least want to see the following:
1) That there are no outstanding terms of your probation. This means that you have paid all of your fines and restitution, and completed any classes that you may have been required to complete.; and
2) That the circumstances surrounding your situation justify an early termination, as mentioned above, that you have a compelling reason.
Under Penal Code 1203.3, you may petition the court at any time during your probation. However, although every case is different, typically the courts will want to see that you have been released on probation for at least 12 to 18 months before they will consider terminating probation early, however, as a general rule, I usually advise that defendants wait until at least half of their term of probation has been completed.
Why would you want to have your probation terminated early?
There are 2 basic reasons why someone would want to file a petition to terminate their probation early. The first reason would be so that you can petition the court to dismiss your conviction under penal code 1203.4 sooner. As indicated in our 1203.4 motion blog, you must successfully complete probation before you can petition the court for an expungement.
The second reason to terminate your probation early, is to reduce the risk that you may violate your probation. If you are arrested for another misdemeanor or felony during your probation period, you will be in violation of your probation, and the penalties could be considerably more serious than if you are not on probation.
What do you have to do to obtain an Early Termination of Probation?
The process for obtaining an Early Termination of Probation is similar to that of the expungement. You must file a motion to terminate your probation early with the clerk’s office in the court where your conviction occurred. If you are on formal probation, you will likely need to discuss this with your probation officer, so that your probation officer can place a hearing on the court’s calendar for you. Once you have filed your motion, the court will likely set a hearing, where you will need to convince the judge that the interests of justice warrant a termination of probation, which can be a very difficult task. As with an expungement, the court does not require that you have an attorney in order to make this request, however, hiring an attorney to assist you can make the process more simple for you, as the attorney will be doing the majority of the work. An experienced attorney will know what language to use in the motion to increase the chances that the judge will terminate your probation early.
What are compelling reasons for convincing a judge to terminate probation early?
There are many compelling arguments for terminating probation early. The following are just a few examples of reasons that are typically used for terminating probation early:
1) Your probation is making it very difficult for your to secure employment;
2) You may already have a job, and your probationary status is making it more difficult for you to advance in that job; and
3) As terms of your probation, you may not be able to travel outside of the State of California, and you have a compelling reason to need to travel in a restricted area.
These are just a few compelling reasons that will assist a judge to consider terminating your probation early.
Once your probation is terminated
Once your probation is terminated, you may be able to file for an expungement. See our blog post on expungements for more information. As always, if you would like assistance in petitioning the court to terminate your probation early, feel free to contact our office to discuss your case. We are currently filing motions for early termination of probation in all courthouses in San Bernardino County. For more information on our firm and information regarding criminal defense, please visit our website at http://www.martell-law.com.
In the near future, look out for our posts on Reducing a Felony to a Misdemeanor after conviction, Certificates of Rehabilitation, and Sealing/Destroying your arrest records.
Disclaimer: The legal information presented on this site should not be construed to be formal legal advice, nor the formation of a lawyer or attorney client relationship. Any results set forth herein are based upon the facts of that particular case and do not represent a promise or guarantee.