lost in love
02-22-2006, 12:54 AM
Okay a friend of mine ( which isn't me:) ) was sentenced to five years probation for a first offense. Lets say that she complies with all the conditions of probation ordered by the judge and the time comes to go to court to have it reduced to a misdemeanor, (which is 2 1/2 years into the 5 year sentence), will she still be on probation? Does that make sense? If anyone has answers or can suggest where to look, please do.
Gryphon
02-23-2006, 01:49 PM
Okay a friend of mine ( which isn't me:) ) was sentenced to five years probation for a first offense. Lets say that she complies with all the conditions of probation ordered by the judge and the time comes to go to court to have it reduced to a misdemeanor, (which is 2 1/2 years into the 5 year sentence), will she still be on probation? Does that make sense? If anyone has answers or can suggest where to look, please do.
The controlling law will be found in CA Penal Code sections 1203.03 and 1203.04.
5 years is the maximum probation term for a felony conviction in CA. Getting a probation term that long usually means theres a lot of $ to pay back; or the rap sheet was ugly; or the crime was aggravated; or all of the above.
!/2 the probation grant is the earliest a probationer can come back and ask for early termination or early specification to a misdemeanor if the plea was to a "wobbler" (a wobbler is a charge that could be either a felony or a misdemeanor.)
However, if the DA was part of a plea bargain, they have to (out the kindness of their heart) agree to such things; and they almost never will. If the deal was all the Judge's doing (known as a "unilateral plea", where every charge was admitted) then the Judge has the ability make terms regarding early termination. If it was a unilaterla plea, the DA can object but they can't pull the plug on request just by saying they don't want to.
Sometimes, specification at 1/2 the probation grant is part of the deal. This typically happens where the case is really all about paying money back (so restitution has to be made prior to the defendant's request); or it's a case that's only just barely a felony.
If there isn't an early grant of specification to a misemeanor, the request is made at teh end of probation. The Judge has the discretion but not the obligation to grant the request. If probation has been complied with, this is a routinely granted motion in most instances. Once it turns into a misdemeanor, there's a motion to take the misdemeanor off the criminal record.
This is a nunc pro tunc order. Think of it like a time machine. You go back in time, the judge withdraws the previously entered guilty plea, the judge now inserts a not guilty plea and dismisses the case, and then you step forward in time. For many purposes, you can say you haven't been convicted of the felony (you'd formerly been convicted of.) However, for other purposes the felony still haunts you (for instance, you still can't possess a firearm).
lost in love
02-24-2006, 06:47 PM
Thank you so much for taking the time to clue me in. I truly appreciate it.