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Ely
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 3141
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am in Texas and my son was sentenced to a deferred

Customer Question

I am in Texas and my son was sentenced to a deferred unajudicated misdemeanor probation on January 15, 2014 for 12 months for the possession of less than 2oz marijuana, class B misdemeanor. He paid all fines, court cost, fee to crime stoppers, every thing the court ordered, he was also required to take a drug class which he completed and a life skills class that he was told every month was full and was not offered in any adjoining or close county. He completed his probation and on January 31, 2015 his parole officer issued a warranty, not for violation but for the same offense of possession of less than 2oz of marijuana. We thought his probation was completed since it was 12 months and that time had expired and he reported every single time required. How can this happen?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 1 year ago.

Thank you for the opportunity to assist you. I'm sorry for what you and your son have gone through.

It's pretty common for a probation officer to issue a warrant when they believe someone has violated the terms of the their probation. If the officer believes your son failed to enroll in the class he was supposed to take, that's not unusual to have a warrant issued. If the judge ultimately believes your son violated the terms of his probation, he could be found guilty of the original marijuana charge and punished up to the maximum punishment on that charge AND on the allegation that he violated the terms of his probation. They're considered separate offenses.

However, you're correctly pointed out at least one potential defense. If your son tried to enroll in the class but the classes were full, that means he WAS in compliance with the terms of his probation. Your son has no control over the class schedule, how full it is, etc. The fact that your son paid his court costs, fines, etc. and basically did everything else the judge told him to do lends credence to the fact that he attempted to get into the class. As long as he made a good faith effort to comply with the judge's order, he should not be found guilty of violating that order.

As for the time of 12 months, it's tough to know without reading the actual sentencing order. But that's probably just the time the judge gave your son to complete all his requirements under whatever program he did. So, if your son allegedly failed to successfully complete probation within that time period, he could be accused of such failure even outside the 12 month time frame.

I hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. I'll get back to you as quickly as I can, although I may not be online at the moment you respond. Otherwise, I hope you will rate my answer positively as that is the ONLY way I receive credit for my work, and doing so will NOT cost you an additional fee.

Best wishes to you,
Shuband

Customer: replied 1 year ago.
Thank you for your prompt reply. I find it hard to believe they can actually charge him with violation of probation and the original charge, that seems almost like double jeopardy. I do know he reported for his probation once every month as stipulated and his first report date was January 29, 2014 and his last report date was February 4, 2015. When he reported in February they did not say anything about a violation, and the warrant was not for a violation, it is for possession of less than 2oz of marijuana. He was driving the vehicle when stopped and had no knowledge of it and the person who had it took full responsibility and told the court the others had no knowledge, but all of the occupants were charged with the same offense. When the classes were full and his probation officer told him he could not get in one he checked all surrounding counties and none offered the life skill class. And they even issued him a refund check because of over payment of his fees required.
Customer: replied 1 year ago.
Also, a class B misdemeanor in Texas is punishable by 180 days in jail and/or fine not to exceed $2,000. His probation was 12 months, is that reasonable for maximum time to be 180 days jail?
Expert:  S. Huband, Esq. replied 1 year ago.

Thanks for the update. I'm not available right now but I'll get back to you as soon as I can.

Shuband

Expert:  S. Huband, Esq. replied 1 year ago.

Thanks very much for your patience. Today did not work out at all as I had planned. I'm just now getting home from work.

It's not double jeopardy to be charged with violating the terms of probation on an underlying charge. It happens all the time.

A probation violation isn't technically a "trial" anyway. The US Supreme Court decided that a probation violation hearing is more of an administrative hearing. This means that certain rights (such as the right to an attorney, to confront and cross-examine witnesses, and even rules of evidence often don't apply as stringently as they do in a trial.) For 2x jeopardy to apply in the context you're thinking of, there has to be a "trial" on the same cause of action twice.

Plus, the allegations are different. The first allegation was related to possessing marijuana; the second allegation is related to his alleged failure to obey a court order.

I agree your son has a very good defense to the allegation he violated the terms of his probation, based on the facts you've provided. Make sure your son provides all this information to the attorney who represents him.

As for the facts of the case, unfortunately when your son entered into a deferred adjudication program, he gave up the right to challenge the evidence and have a trial. That's the forum in which he would have raised the issue of not really being guilty anyway. But, when faced with the possibility of a conviction and jail time, MANY people very smartly choose the safer route of a deferred adjudication. I often advise my clients to do this, even when they have a strong defense, if they don't really want to take the risk of going to trial, possibly being convicted, going to jail, etc.

As for the 12 month probation period for a 6 month jail sentence charge, I cannot find an exact answer in the code. However, I am finding from other fairly reliable sources that the maximum term for probation on a misdemeanor is two years. (I prefer to get answers from the state code, but I just can't put my finger on it right now if it's in there.)

Thanks again for the opportunity to assist you. Please let me know if you need clarification. I'll get back to you as quickly as I can, although I may not be online at the moment you respond.

Otherwise, I hope you'll rate my answer positively as it is the ONLY way I receive credit for my work and doing so will NOT cost you any additional fee.

Best wishes,
Shuband