Probation and its conditions can severely curtail your ability to find employment, travel or to live a normal life without the fear of violating a condition that can send you to prison or jail. Below is information on the steps needed to undertake an early termination of probation.
Probation is a sentence imposed by the court either in lieu of a jail or prison sentence or which is to be served after the defendant has been incarcerated for a time.
You can be sentenced to formal or informal probation. Informal probation is usually imposed for misdemeanors such as a DUI or other non-violent offenses in which you need not report to your probation officer but must follow whatever conditions the court imposed on you as a condition of your probation.
Conditions to follow are usually not onerous and may entail not drinking and driving, not being arrested or convicted of another offense, paying court fines and/or restitution to a victim, staying in school and/or participating in whatever programs ordered by the court.
Formal probation is for many felony convictions, especially in violent or sex-related offenses. You usually must periodically report to your assigned probation officer at a time and place designated by the officer to give an accounting of your activities, efforts at securing employment and participation in any court-ordered programs.
You are subject to random drug testing in many cases and may not move from your residence, leave the state or change employment without advising the officer. You may also be ordered to stay away from certain individuals.
In theory, you can apply for early termination of probation1 under Penal Code Section 1203.3 at any time after you are placed on probation. This statute states that a judge has the authority at any time during your probation to revoke, modify or change its order of imposition or execution of sentence. Any change must serve the ends of justice and upon a showing of good conduct and reform by the defendant.
Your attorney can file a motion under this statute and give the prosecutor at least 2-days notice before the hearing is to be held. Depending on the severity of your offense, you may or not have to attend the hearing. Usually, your attorney will know in advance if the prosecutor will oppose the motion. If so, your attendance is usually necessary.
In the motion for early termination, your attorney will include the reasons why early termination should be granted.
- The court will want to be assured that you have not re-offended or
- Have a pending criminal matter and have completed all conditions of your probation.
- Including successful completion of any court-ordered programs such as alcohol or drug education and
- Have paid restitution if ordered.
If you violated any condition of your probation such as failing a drug test or contacting a victim and spent time in jail or prison, you can still apply for early termination once you served your time though a court may be reluctant to grant early termination at least for some period after your release.
Should I apply for early termination right after I am sentenced?
You could but it would likely be a waste of time and money on your part. Judges need for you to demonstrate that you have complied with court-ordered conditions of restitution and completion of any programs. This might include paying a victim or entity for any property damage you caused or money that you stole. If you have a drug or alcohol issue, then you will generally have to attend either an education program or in-patient or out-patient treatment. Domestic violence or sex offense matters may entail counseling as well. In any event, the court will want to see a satisfactory report on your progress over at least the past 12 to 18-months since you were released or your probationary period commenced.
What constitutes “good conduct” and “reform?”
Good conduct refers to abiding by all laws and not causing any problems or issues. You must not have re-offended, been terminated or asked to leave a court-ordered program because of non-attendance or unruly behavior or harassed a victim. These are probation violations that can result in your being incarcerated or having additional restrictions or conditions imposed.
Reform requires that you not only have not re-offended or violated a condition of probation, but can show efforts to re-integrate into your community. This may be attending school on a regular basis or having obtained a degree and securing employment. Regular church attendance as verified by your pastor, priest or rabbi, engaging in community activities such as coaching a youth team or continuing voluntary participation in an alcohol or drug program are strong indicators of reform. You should also demonstrate that being on probation has specifically prevented you from securing employment, leasing a residence or obtaining other benefits.
What other factors does the court consider?
Along with showing successful completion of community service and attendance at court-ordered programs and payment of fines and/or restitution, the court will also consider:
- Your past criminal history
- The severity of your offense–was a firearm involved or did someone suffer serious bodily injury?
- Was this a sex crime?
- Whether the prosecution is objecting
- If your ability to secure suitable employment, attend school, to qualify for financial assistance for school or a business or car loan or some other benefit has been curtailed
What are the benefits of receiving early termination?
Just being relieved of any restrictions on your daily activities is reason enough but there are other tangible benefits as well:
- You can apply to have your record expunged
- If your felony offense was a “wobbler,” you can ask the court to reduce it to a misdemeanor while applying for expungement
- You can apply for a Certificate of Rehabilitation if your offense cannot be expunged unless it involves certain serious offenses
- It removes any risk of violating a condition of probation
- If you are convicted of another offense, you will not face possible imposition of a sentence for the crime for which you are serving probation as well as face prosecution for the new offense
An expungement means that your record of conviction is no longer accessible to the general public including employers or landlords. You do have to disclose your conviction and expungement when applying for public employment or licensing.
If granted early termination, can I apply for exclusion from Megan’s Law?
You can be excluded from Megan’s Law only if you apply to the Department of Justice for exclusion though this will not relive you of your obligation to register as a sex offender. Only certain sex crimes are considered. Terminating your obligation to register for life, however, and removing your name and information about your offense is possible only if you are granted a Certificate of Rehabilitation from the court. You can apply once you are no longer on probation.
Are my gun rights restored after my probation is terminated?
If you were convicted of a felony, your gun rights will not be restored once your probation is terminated. If the conviction was a“wobbler” offense where you could have been charged with a misdemeanor, then you can apply to have the felony reduced to a misdemeanor at the same time you apply for expungement. In most cases, this will restore your gun rights. Otherwise, only a Governor’s pardon will restore your 2nd Amendment rights.
If you are seeking an early termination of probation and would like to learn more about how attorneys charge.
If you are ready to discuss a pending misdemeanor case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
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- California Penal Code 1203.3 – Probation; revocation, modification or termination and discharge; conditions; revocation at time of escape; hearing. (“(a) 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. (b) The exercise of the court’s authority in subdivision (a) to revoke, modify, change, or terminate probation [known as an early termination of probation] is subject to the following: (1) Before any sentence or term or condition of probation is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter, except that, as to modifying or terminating a protective order in a case involving domestic violence, as defined in Section 6211 of the Family Code, the prosecuting attorney shall be given a five-day written notice and an opportunity to be heard. (A) If the sentence or term or condition of probation is modified pursuant to this section, the judge shall state the reasons for that modification on the record. (B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor. (2) No order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order. (3) In all cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections. (4) The court may modify the time and manner of the term of probation for purposes of measuring the timely payment of restitution obligations or the good conduct and reform of the defendant while on probation. The court shall not modify the dollar amount of the restitution obligations due to the good conduct and reform of the defendant, absent compelling and extraordinary reasons, nor shall the court limit the ability of payees to enforce the obligations in the manner of judgments in civil actions. (5) Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation…” [↩]