Violations of Probation in Iowa
After a probation officer alleges that you violated the terms of your probation, the probation officer can file a violation report with the court. The court can then issue a warrant for your arrest based on those allegations that you violated your probation. In many cases, the warrant has a "no bond" provision meaning that you cannot immediately bond out of jail. Instead, you must go back to see the judge that put you on probation or another judge assigned to the case.
Violations can involve a technical condition of the probation (such as failing a drug test or absconding from the jurisdiction). Violations can also include an allegation that the person on probation committed a new law violation or criminal offense.
Probation Violation Attorney in Des Moines
If you believe that your probation officer is going to allege that you violated probation then contact an experienced criminal defense attorney in Des Moines at McCarthy & Hamrock, P.C.. We represent clients throughout the State of Iowa on probation violations and at revocation hearings including in Polk County, Warren County, Dallas County, Madison County and Guthrie County. Call us to discuss possible defenses that might apply to the facts of your case. Call (515) 279-9700.
Overview on Probation Violation in Iowa
- Being Sentenced to Probation
- Special Conditions of Probation
- Length of Probation
- Requirements for Probation Violation Hearings
- Jurisdiction to Revocate Probation
- Form of revocation orders
- Degree of Proof in Violation of Probation Revocation Hearings
- New Charges in a Violation of Probation Case
- Violations of Self-Supervised Probation
- Resources for Probation Cases in Des Moines, IA
- Working with an Attorney for Violation of Probation Cases in Iowa
Iowa Code Ann. § 907.1(5) gives the court the option of sentencing a person to probation. The term “probation” is defined to mean the procedure “under which a defendant, against whom a judgment of conviction of a public offense has been or may be entered, is released by the court subject to supervision by a resident of this state or by the judicial district department of correctional services.”
The Iowa legislature has given the courts broad, but not unlimited, authority in “establishing the conditions of probation.” See State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998). Iowa Code section 907.6 provides:
Probationers are subject to the conditions established by the judicial district department of correctional services subject to the approval of the court, and any additional reasonable conditions which the court or district department may impose to promote rehabilitation of the defendant or protection of the community.
Iowa Code § 907.6 (emphasis added). Although the sentencing judge has discretion with respect to the conditions of probation, that discretion must be exercised “within legal parameters.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).
Iowa Code Section 907.7 sets out the requirements for the length of probation and provides;
- The length of the probation shall be for a period as the court shall fix but not to exceed five years if the offense is a felony or not to exceed two years if the offense is a misdemeanor. The period of probation may be extended for up to one year including one year beyond the maximum period as provided in section 908.11.
- The length of the probation shall not be less than one year if the offense is a misdemeanor and shall not be less than two years if the offense is a felony.
- The court may subsequently reduce the length of the probation if the court determines that the purposes of probation have been fulfilled and the fees imposed under section 905.14 have been paid to or waived by the judicial district department of correctional services and that court debt collected pursuant to section 602.8107 has been paid.
- The purposes of probation are to provide maximum opportunity for the rehabilitation of the defendant and to protect the community from further offenses by the defendant and others.
In determining the length of the probation, the court shall determine what period is most likely to provide maximum opportunity for the rehabilitation of the defendant, to allow enough time to determine whether or not rehabilitation has been successful, and to protect the community from further offenses by the defendant and others.
Iowa’s statutory scheme does not prescribe the procedure for revocation hearings. The courts have indicated, however, that such proceedings are very different from criminal trials and considerably less formal. The hearings are also summary in nature. For instance, in State v. Lillibridge, 519 N.W.2d 82 (Iowa 1994), the defendant's deferred judgment was revoked at the revocation hearing because of the violation of probation, and the defendant was sentenced to jail. The court found the hearings could be informal but cautioned:
[a]lthough procedure can be informal, probation revocation involves a serious loss of liberty and due process must be afforded. The trial court does not have to file an opinion or make conclusions of law, but due process requires written findings by the court showing the factual basis for the revocation. While a calendar entry could meet this requirement, the district court's calendar entry does not indicate what evidence the court relied on in revoking probation.
Id. (citations omitted).
Many of the rights enjoyed during the criminal prosecution do not apply to violation of probation hearings. Limitations in violation of probation hearing include the court acting to revoke probation arbitrarily, capriciously, or without any information. In other words, the discretionary power of the court should not be exercised on a whim or in an arbitrarily or capriciously manner.
One of the most common questions we get is whether the statute of limitations prevents the court from considering a violation of probation. The statute of limitations does not generally apply in a violation of probation case. However, the court may lose jurisdiction over the probation officer if the application to revoke probation is not filed during the probation period.
As a general rule, if the application to revoke probation is filed during the probation period, then the court retains jurisdiction to conduct a hearing and revoke the probation even after the original probation period has expired. See State v. Jensen, 378 N.W.2d 710, 712-13 (Iowa 1985). On the other hand, it has been recognized that a long delay between issuance and execution of an arrest warrant may be unreasonable and constitute a denial of due process that deprives the court of jurisdiction over a probation violator. Barker v. State, 479 N.W.2d 275, 278 (Iowa 1991).
A criminal defense attorney in Iowa must also look out for cases in which the probation was extended beyond the term allowed by law. If the application to revoke probation was filed after the statutory period has expired, then the court loses jurisdiction.
Since there is no statute that requires a certain form for a revocation of probation order, the courts have held that the revocation order after a violation of probation hearing does not need to be in any particular form. Nevertheless, the court should render an opinion and conclusions of law sufficient to support the order. Additionally, the order should show the factual basis for the revocation. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. The strict rules of evidence in criminal trials do not apply in revocation hearings. Id.
In many violation of probation revocation hearings the prosecutor will attempt to use hearsay evidence. The courts have held that when hearsay is admitted, revocation does not constitute an abuse of discretion if the fact of the violation is established by evidence which is competent. United States v. Register, 360 F.2d 689 (4th Cir.), cert. denied, 385 U.S. 817, 87 S.Ct. 37, 17 L.Ed.2d 55. But the court does abuse its discretion when it rely entirely on hearsay evidence. Id.
In a criminal prosecution on new charges, the State must prove each element of each charge beyond all reasonable doubt. But in a violation of probation revocation hearing, the requisite degree of proof is a preponderance of the evidence. See A.B.A. Project on Standards for Criminal Justice, Standards Relating to Probation, s 5.4(a)(iii). In other words, the grounds for revocation need not be established beyond a reasonable doubt.
A criminal defense attorney can help you fight the violation of probation allegations by showing that substantial evidence does not exist to permit the trial court to make finding on the basis of a preponderance of the evidence.
What happens when a person is on probation and is then accused of committing a new law violation or criminal offense? Should the court proceed with the violation of probation hearing, or wait until the new criminal charges are resolved? Because no statutory provisions set out the requirements for a violation of probation hearing in Iowa, the courts often look for guidance from the drafters of Standards Relating to Probation, A.B.A. Project on Standards for Criminal Justice. Standard 5.3 provides:
“A revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to disposition of that charge. However, upon a showing of probable cause that another crime has been committed by the probationer, the probation court should have discretionary authority to detain the probationer without bail pending a determination of the new criminal charge.”
In many cases the criminal defense attorney in Iowa will seek to postpone the probation revocation proceedings until disposition of the criminal charge. This procedure is often better because it minimizes the hazard of unfairness in the proceeding.
If it is alleged that you violated your self-supervised probation or low-risk probation, the probation officer can send the judge a report showing the violation. The court can then issue an arrest warrant or send you notice of the revocation hearing. At the revocation hearing, the court could revoke your deferred judgment and impose any sentence in the case that you could have originally received including the statutory maximum period of incarceration allowed for that charge.
If you were originally sentences to a suspended sentence and the court revokes your probation than the suspended jail time and/or suspended fine can be imposed by the court.
If it is alleged that you are in contempt of court, then you are allowed to keep the deferred judgment or suspended sentence but the court can impose an additional fine, required the completion of additional community service hours and/or sentence you to jail time as a penalty for violating your probation.
Low-Risk Probation Information Packet - this information packet for the Fifth Judicial District which covers probation cases in Des Moines, IA. The information packet includes information on obtaining early discharge and reporting requirements for a new arrest or criminal charge. The packet provides that you must contact your probation officer within 48 hours of the new arrest. The packet also explains how reports of violation of probation work including arrest warrants and notice of revocation hearings.
For more information on low-risk probation in the Fifth Judicial Circuit contact:PROBATION INTAKE OFFICE
POLK COUNTY COURTHOUSE, ROOM B-40 500 MULBERRY ST
DES MOINES, IA 50309
If you are charged with violating your probation then contact an experienced criminal defense lawyer at McCarthy & Hamrock, P.C.. We represent clients on violation of probation cases and revocation hearings throughout the greater Des Moines-Newton-Pella area including Polk County, Dallas County, Warren County, Madison County and Guthrie County.
With offices in West Des Moines, Iowa, call our attorneys to discuss your case today. Call (515) 279-9700.