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Being offered probation is usually seen as a good thing and it is.  Howver, probation and the violation consequences can be serious.  If you have been arrested give me a call as A Criminal Defense Attorney with more than 13 years of experience I have handled many hundreds of cases that have resulted in probation 

First, there are two kinds of probation with very different consquences and requirements Felony Probation and Misdameanor Probation or as sometimes called bench probation. 

If you are conivcted of a Felony and have no prior history usually you will be offered probation. 

There are certain people that are inelgible for probation.  If you are convicted of a Violent Felony under 667.5 then you are not eligibe for probation.  You might recieve a stayed sentence which I will review later. 

Also, if you have serious felony, in other words a strike offense, under 1192.7 and a current felony conviction.  You are considered ineligibe for probation. 

In this case you could either get a stayed sentence, or go to a 90 diagnostic in State Prision

A stayed sentence means you will be given a prision term say for expample 5 years, but that sentence is stayed pending you successfully completing probation.  And if you violate you will automatically get that sentence of 5 years. 

A 90 diagnostic means you go to reception in the state prison system.  You will be evaluated to determine if you are a suitable candidate for probation.  Usually three different counselors will give there recommendation as to whether you are a suitable candidate for probation. 

The Judge does not have to go with there recommendation and may committ you to prison.


Under certain circumstances you could be offered probation under unusual circumstances. 

The law makes an assumption that certain people convicted of certain crimes are not eligible for probation.  except in unusaul circumstances or where the interest of justice will best be served if the person is granted probation.

1. If you inflicted gbi or great bodily injury you are presumpitively inelgible for probation. 

2. an offernse where you used a deadly weapon

an offense where you hurt or killed someoen in a drive by shooting

a grand theft of over $100,000 dollars.

There are several more crimes and this is not an exhuastive list.


The sentencing Judge may look at certain factors to determine if you will be granted probation even though you are statutorily ineligible. Those are listed in rule of court 4.413.


These factors include the seriousness of the defendant’s crime in comparison to others

wether youthful or aged

indicators of reduced culpability

The factors in 4.413 are considered to determine if the statutory limitation is overcome then the court looks at the factors in 4.414 to determine if probation should be granted.

Another factor which the court could look at is if there is presence of some mental health problem undiagnosed.  For example the person had an undiagnosed bipolar disorder and if he had been properly cared for then he probably would not have committed the crime. 

Of course there must be a psychiatrist or psyhcologist to make this diagnosis.  We often have psychologist examine our clients.

If the court finds unusual circumstances they must still go through the analysis under 4.414 to determine if probation will be granted these include:

1. the seriousness of the crime

2. wether the defendant was armed

3. the vulnerability of the victim

4. whehter the defedant inflicted physical or emotional injury

5. the degree of monetary loss to the victim

6. whether the defendant was an active or passive participant

7. whether the crime was committed under unusual circumstances such as great provocation, which is unlikely to occur

8. whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on part of the defendant,

9. whether the defedant took advantage of a position of trust.

the court also looks at factors as to the defendant such as

what is the prior record

prior performance on probation or parole

whether the defendant was remourseful

and there are several other factors

After looking at all these factors the judge can make the determination that you should get probation.



If you are on Felony probation and violate a  number of things could happen.

1.  You could be sent to state prison. and the term if up to the court.  If you are placed on probation for a felony, and you violate your probation you could be sent to state prision just for that violation. 

for example if you are on probation for vehicle theft you have a possible term haning over  your head of 1-2, or 3 years in prison if you violate your probation.  The court does not tell you which until you are sentenced they are not required to give you the minimum term. 

or if you were given a stayed term  of 1 year, meaning the judge sentenced you to 1 year in prison but stayed the term then, if  you violate that becomes your sentence. You get credit for any time you have already served against your sentence. 

or, you could have your probation revoked and reinstated under the same terms and conditions, with the same date of probation ending.  Say for example you have a minor violation of probation, or it is your first violation the court will often use this sentence and wil add some type of punishment, say time in the county jail. 


I belive the distinctions between Felony probation and Misdameanor probation are being blurred.   As a former probation officer, I have seen the misd probation become more restrictive and less like the court probation  of the past where you simply were on bench probation without many terms and conditions. 

If you violate your misd terms and conditions you could face jail time or other forms of probation depending on the severity of the violation.

Many times the probation department will put our a warrant for someoen that has violated misd probation, but never follow up and never revoke probation.  That means that if probation catches up with you 5 years later and brings you before the court the court no longer had jurisdiction of you.  This is because your 3 year term of probation has run out and altough you had a warrant out your probation was never revoked; therefore, your probation time ran out.  This is a fine distinction that most attorneys and many judges look past. 

So if you have questions feel free to call.



Gerald Schwab, Jr.


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Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704 View Map
Phone: 559.441.1418