Should I agree to serve jail time just to close a case after a probation violation?
If a prosecutor or probation officer is willing to recommend either a short jail term to close a Utah probation case or, alternatively, reinstating or restarting probation for the original time period, which is the better option?
The answer to this question may depend on whether a person is thinking about the long-term or short-term effects of the criminal case. For some people, the idea of serving a week in jail and having the case closed may sound appealing when compared with the alternative of restarting the probation period and being supervised for another 12-36 months. While a week in jail may seem like a quick and easy solution, it can cause problems later on.
The best defense attorneys challenge the status quo through ethical advocacy both in and out of the courtroom.
To really understand your options, and the potential consequences, you should consult with an experienced criminal defense attorney. But the following hypothetical example may provide assistance in understanding some of the issues involved.
A person is convicted for a third-degree felony charge. The judge enters a sentence, suspending the 0-5 year prison term and placing the defendant on probation for a 36 month period. After two years on probation, AP&P reports to the court that the defendant has violated the terms of probation, and the court issues a warrant and an order
to show cause.
At the hearing on the order to show cause, the defense attorney negotiates with the prosecutor, and the prosecutor agrees to either recommend re-starting probation for an additional 36 months, or closing the case out unsuccessfully with a week in jail.
The best attorneys understand your case involves more than just what happens in court.
This scenario provides two contrasting alternatives: an additional three years of supervision from AP&P and the department of corrections, or a relatively short period of jail time. The second option gives the defendant a quick end to the case, but is in some ways the “easy way out.” The first option requires more time and more work on the part of the defendant. But it also gives the defendant an opportunity to complete probation successfully.
A successful completion of probation can be important if a defendant will later benefit from a “402 reduction” in the level of conviction. While former versions of Utah Code 76-3-402 required a person to complete probation without any violations, the current version (as of 2015) of the statute requires instead that probation be completed successfully.
A 402 motion is commonly used to reduce a felony conviction to the misdemeanor level. A 402 reduction can be used to shorten the waiting period for an expungement or, in some cases, restore eligibility for expungement.
A successful defense strategy starts with an understanding of your goals and needs.
While it may be tempting to look for the fastest way to get out of the criminal court system, it is important to keep in mind the lasting impacts that a felony criminal conviction can have on a person’s life . . . even many years later. The assistance of an experienced criminal defense attorney can be vital in making the best decision.
