Earlier this week in Oklahoma County District Court, we were able to obtain the dismissal of the motions to revoke the suspended sentences of two of our clients. With these dismissals, it seems an appropriate time to talk about violating probation and the possible consequences. In many cases, if a prosecutor believes that a person has violated his or her probation in some way, he or she will file a motion to accelerate sentencing or a motion to revoke a suspended sentence.
In order to understand the difference between a motion to accelerate and a motion to revoke, we must first understand the types of probation associated with each.
In some cases, a defendant is given a deferred sentence that allows him or her to serve probation instead of jail or prison time. For many defendants for whom outright dismissal is not likely, a deferred sentence is the optimal resolution to the case. This is because if the defendant successfully completes probation, the case is dismissed, and there is no criminal conviction.
A deferred sentence begins with a guilty plea. However, instead of accepting the plea, convicting the defendant, and sentencing him or her to jail or prison, the judge defers, or delays, judgement. Instead, the judge orders the defendant to complete probation, the terms of which may include counseling, drug or alcohol treatment, payment of all fees and court costs, and staying out of further legal trouble. If the defendant adheres to the conditions of probation, then at the end of the probationary term, the defendant's plea is revised to "not guilty," and the judge dismisses the case.
A suspended sentence, like a deferred sentence, allows the defendant to serve all or part of the sentence outside of jail or prison. In a suspended sentence, the defendant is actually convicted of a crime, but instead of serving the full sentence behind bars, probation may be served in place of some or all of the term of incarceration. For example, if a defendant is given a 5 year sentence with all but the first year suspended, he or she will serve up to a year in jail followed by four years of probation to complete the sentence.
But what happens if the defendant does not do everything he or she is ordered to do under the terms of probation? What if he or she does things that probation prohibits?
If the defendant violates probation, a prosecutor will file a Motion to Accelerate (MTA) judgement in a deferred sentence or a Motion to Revoke (MTR) a suspended sentence.
Just as there are subtle differences between a deferred sentence and a suspended sentence, there are slight differences between a Motion to Accelerate and a Motion to Revoke.
In a deferred sentence, the defendant has not been convicted or sentenced. When a prosecutor files a MTA, he or she is asking the judge to just skip ahead to the judgment and sentencing. Let us say for example that a defendant was given a 3-year deferred sentence for a crime that carries a maximum sentence of 5 years. Two years into probation, he or she violates probation by committing some other offense. If the judge grants a motion to accelerate sentencing, he or she will go ahead and accept the initial guilty plea, convict the person of the initial crime, and sentence him or her for that crime. It is important to note that in this case, the defendant may be sentenced to the maximum--the initial two years of probation do not count as "credit" against the sentence.
In a suspended sentence, the defendant has already been convicted and sentenced. If he or she violates probation and the judge grants the prosecutors Motion to Revoke the suspension, then the defendant will have probation taken away and will instead serve his or her sentence in prison. Just as in the acceleration of a deferred sentence, the convicted person may be subject to the maximum sentence in prison despite having already served a portion of the sentence.
To find out more about probation violations and how you can fight a Motion to Accelerate or Motion to Revoke, call Oklahoma criminal defense lawyer Dustin Phillips at (405) 418-8888.