by Attorney Eric D. PuryearIf a criminal defendant has allegedly violated his or her probation in Illinois, the court can issue a notice or a summons to the defendant to be present for a hearing or order a warrant for the defendant’s arrest if the defendant is a flight risk, causes serious harm to others, or fails to respond to a notice or summons. Service of the notice, summons, or warrant tolls the probationary period until a hearing is held on the probation violation. Pending the hearing, the defendant is bailable unless the violation is a new criminal charge and the terms of the Code of Criminal Procedure apply.
If the defendant is incarcerated only because of the the probation violation, then the hearing must take place within fourteen (14) days of the start of the incarceration period. If the defendant is also incarcerated for another charge, then the time frames set forth in the Code of Criminal Procedure apply.
At the probation violation hearing, the State bears the burden of proof by a preponderance of the evidence of proving the violation(s). This burden of proof is much lower than in criminal cases, which is by evidence beyond a reasonable doubt. The defendant at the probation violation hearing has the right to confront the witnesses, cross-examine the witnesses, and be represented by an attorney.
If the defendant has failed to pay financial obligations, the court cannot revoke probation unless such failure to due to a willful refusal to pay. If the court finds that the defendant has violated a condition of probation, the court has several options: (1) continue the defendant on probation with or without modifying the conditions of probation or (2) impose any sentence that was available at the time of the original sentencing. Under certain circumstances, the court must revoke the probation. If probation is revoked and the defendant is re-sentenced, the defendant does not receive credit for time spent on probation unless the court orders otherwise. The amount of credit must be calculated on the basis of actual days spent in confinement rather that the duration of the term.
Instead of filing a formal violation of probation, the probation officer with approval of his or her supervisor may serve on the defendant a notice of intermediate sanctions. The notice must state the technical violation(s), the date of the violation(s), and the intermediate sanction to be imposed. Upon receipt of the notice, the defendant must immediately accept or reject the intermediate sanction. If accepted, the sanction is imposed immediately. If a defendant successfully completes the intermediate sanction, the court may not revoke probation or impose an additional sanction for the same violation. If rejected or if the defendant does not respond, a violation of probation shall be immediately filed with the court. Intermediate sanctions cannot be used for new felony charges. For multiple or repeated violations, intermediate sanctions must include a period of home detention.