Probation Revocation Appeals

Part of my appellate practice involves cases where a defendant’s probation has been revoked, either after an evidentiary hearing or after the defendant has admitted to violating the terms of his probation. These are some of the hardest appeals to write, despite their simplicity, because there is only so much that can be appealed and the standard of review is burdensome for the defendant.

A couple of practice pointers. First, always check the defendant’s credit time. That can be raised at any time in a case, and on several occasions I have found an incorrect calculation of credit time.

Second, if there was a contested hearing on the violation allegations, consider raising a sufficiency of the evidence argument. The State has to prove by a preponderance of the evidence that the defendant violated a term of probation. It is a fairly low burden, but where the State often gets tripped up is on proving the defendant violated a condition of his probation by committing a new criminal offense. The State cannot simply show that the defendant has been arrested on a new criminal offense; if the case has not been resolved, the establishment of probable cause to file charges is not sufficient to meet the State’s burden. Rather, the State must present some evidence to show the defendant actually committed the new offense.

Where the State did present sufficient evidence of a violation, or where the defendant admitted to the violation, there is still an appealable issue: the disposition. As the Court of Appeals discussed today in a published opinion reversing the defendant’s probation revocation, the appropriate sanction depends on the severity of the violation. An argument that the sanction imposed was too severe, given the technical/minimal nature of the violation is available, even where the defendant admitted to the violation.