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California Legal Help Topics, Discussions and Information relating to Legal Information specific to the State of California. This information is *NOT PROFESSIONAL* and should always be fact-checked!

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Old 12-14-2008, 03:23 PM
South Bay South Bay is offline
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Default Resolving California Probation Violation Charges

Penal Code section 1203.2a provides a means for a prisoner to resolve any felony probation violation matters pending in California state courts. Although the statute is lengthy and complicated, it has a straightforward purpose: To give prisoners an opportunity to obtain a sentence on the probation violation matter that is concurrent with their current term. Section 1203.2a applies to any prisoner who, at the time of his or her commitment to a prison term (including out-of-state or federal) was on probation for another California case.

Section 1203.2a establishes procedures for requesting disposition of pending probation violation matters, time limits for officials and courts to act on such requests, and consequences if time limits are not met. There are separate provisions that apply to persons who have been sentenced, but for whom execution of sentence was suspended when they were placed on probation, and those who were placed on probation without imposition of sentence. In other words, there are different procedures depending on whether or not the judge who granted probation decided what sentence would be imposed if probation were violated in the future. Thus, a prisoner who wants to resolve a probation violation matter must determine whether a sentence was imposed at the time probation was granted. This information may be in the sentencing transcripts or other documents concerning the hearing in which probation was granted; the information may also be obtained from the attorney who worked on the case. It is important for a prisoner to try to get the correct information, as the courts require strict compliance with the statute before they will find that a court has lost jurisdiction to act on a probation violation charge

If Sentence Was Imposed

If a sentence was set when probation was granted, but execution of the sentence was suspended while the person was on probation, the procedure for resolving a pending probation violation charge is quite simple. The prisoner, his or her lawyer, or a prison official need only notify the probation officer in writing about the prisoner's current incarceration. Alternatively, the prisoner can have prison officials send the court that granted probation a “certificate” showing that the defendant is confined in prison. To be safe, a prisoner should both write to the probation officer and ask prison officials to send a certificate to the court.

Once the probation officer receives the notice of the prisoner's current incarceration, the probation officer must notify the court within 30 days. After the court receives the notice from the probation officer or prison officials, it must issue a sentencing commitment - for either a prison commitment - consecutive or concurrent sentence - or some other final order within 60 days. If the court fails to act within 60 days, or if the probation officer fails to inform the court of the prisoner's confinement within 30 days after receiving notification, the court will lose jurisdiction to sentence the prisoner for the probation violation. The grant of probation will be reinstated.

If Sentence Was Not Imposed

If a sentence was not stated when probation was granted, the prisoner who wants to resolve a probation violation charge must request to be sentenced in absentia. The request may be made by the prisoner or by his or her lawyer. If the prisoner makes the request, the request must be in writing, be signed in the presence of a prison official, and include waivers of the prisoner's rights to personally appear and have an attorney at sentencing. The prison official must sign as a witness to both the request and the waivers.

CDCR Form 616, Request for Disposition of Probation, Waiver of Appearance and Right to Attorney (copy attached as PDF), is used for such requests and waivers. After the waiver form is completed, it should be mailed to the clerk of the superior court in which the probation violation matter is pending. Once the court has received the request and waivers, it must impose a sentence and issue its commitment order, or make a final order terminating its jurisdiction, within 30 days. If the court fails to act within 30 days, has no further jurisdiction to act in the case and cannot impose any sentence for the violation.

If the court does act, it can impose either a concurrent or consecutive sentence. If the court imposes a concurrent sentence on the probation violation matter, the term is considered to have begun on the date that the prisoner arrived in the CDCR (or other state or federal prison) to serve his or her current term. This rule that a concurrent probation violation sentence dates back to the start of the current term can be a great benefit to a prisoner who receives a concurrent sentence. However, if a consecutive term is imposed for the probation violation, that term will not start running until the prisoner finishes serving the current term. Any consecutive sentence for non-violent felonies, however, would be limited by the “third of the base term” rule; so for instance, a 2-year consecutive sentence would result in an 8-month term, with 4-5 months actual time including CDCR worktime credits.

The whole idea behind a 1203.2a waiver is to benefit from the potential concurrent sentencing provisions. The key is to be sentenced on the probation violation matter before completion of the current sentence. Even if a consecutive sentence were issued, however, it would still be less than any stand alone sentence imposed after the full completion of a prisoner’s current term.

South Bay

(Credit to the California State Prisoner’s Handbook for much of the above information.)
Attached Files
File Type: pdf 1203.2a Waiver Form.pdf (104.9 KB, 403 views)
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