Applications to Revoke vs. Accelerate (Suspended vs. Deferred Sentence)
When a person accepts a plea bargain agreement, enters a guilty plea and is then sentenced to a probationary term, they are subject to either a Suspended Sentence or a Deferred Sentence. If the sentence is suspended, that means that the Court finds the Defendant guilty, but allows the person to serve their sentence in the community rather than in jail or prison. If the sentence is deferred, the Court does not find the Defendant guilty, but delays sentencing until the end of the probationary term. If the person successfully completes the term of probation, the case will be dismissed and expunged from the court record pursuant to 22 O.S. § 18, et seq.
However, when a person accepts a term of probation, they agree to certain terms and conditions of probation. If the Probation Officer determines that someone has not complied with each of the Rules and Conditions that they are subject to, they will file a Violation Report with the Court. Typically, when the prosecuting agency receives the Violation Report they will file a motion to bring the probationer before the Court to reassess the fitness of the person for probation. The proper motion for the government to file is an Application to Revoke if the person is serving a suspended sentence, or an Application to Accelerate if the person’s sentence is deferred. In either case, if the judge grants the government’s motion the result could potentially result in a prison term or jail sentence.
Revocation / Acceleration Hearing and Burden of Proof
When an Application to Revoke or Accelerate is filed, an arrest warrant will typically issue. Once an Appearance Bond is posted, the case will be placed on the judge’s docket for arraignment. An Application to Revoke is required by statute to be heard within twenty days of arraignment. There is no such requirement for an Application to Accelerate. At that hearing, the government has the burden to show that the Rules and Conditions of Probation were violated. If the government was mistaken or cannot prove that there was a violation of the rules, The Application will be denied and the probation term will continue as originally imposed.
If the prosecution satisfies the judge that the probationer was in violation of the rules of probation. It is often not difficult for the government to show that a person is in violation. The main reason for this is that the burden of proof in a Revocation or Acceleration Hearing is lessened to a Preponderance of the Evidence. That means that for the judge to find that there was a probation violation, he must determine that the person “probably” did not follow one or more of the Rules and Conditions of Probation. This is in contrast to the burden of Beyond a Reasonable Doubt used in criminal trials, which would require affirmative proof of a probation violation to a moral certainty. As a result, it is often sufficient for the government to call one witness, typically the Probation Officer, to testify that a rule has not been followed.
Also, as a practical matter, it is often the case that there has been some technical violation. With the proper advocate, the person may be allowed time to come into compliance with their probation, and avoid incarceration. In many cases the Application to Revoke or Application to Accelerate will be dismissed, and the person will retain their suspended or deferred sentence when compliance is shown.
Rules and Conditions of Probation
Typical rules of probation include:
I will until my final release, make a report in writing and in person as directed by the Supervising Authority.
I will not use or be in possession of intoxicants or illicit drugs of any kind, or visit places where illicit drugs are unlawfully sold, dispensed or used. I understand that I am not allowed to enter or loiter around beer taverns or clubs.
I will not leave the State of Oklahoma without permission of the Supervising Authority. I will not leave ______________ County without permission of the Supervising Authority.
I will not communicate with persons on parole or inmates of penal institutions, nor will I associate with persons having a criminal record or involved in criminal activity. I understand that it is my responsibility to know if an associate has a criminal record.
I will allow the Supervising Authority to visit me at my home, place of employment or elsewhere. I will notify the Supervising Authority before changing residence or employment.
I will carry out all instructions that the Supervising Authority may give me, including but not limited to, urinalysis, curfew and treatment.
I understand it will be a violation of my Probation to own, carry or possess firearms or ammunition of any type or to be in a vehicle where a firearm is located.
I will work regularly at a lawful occupation and support my legal dependents without public assistance as long as I am physically able to do so.
I will refrain from violating City, State or Federal laws and I will report within 48 hours if I am arrested or questioned by any law enforcement agency.
I hereby agree to pay the sum of $40 per month for the term of my probation to the Supervising Authority to defray the cost of my supervision. Costs incurred from the method of payment are the responsibility of the offender.
Special Conditions: Treatment/ Urinalysis; Drug / Alcohol Counseling; Restitution; Psychiatric Counseling; Community Service; Stay Away Order; etc.