Petitions to Revoke Probation
Felony & Misdemeanor Re-Sentencing in Cook Cook, Will, Du Page & Lake Counties:
In Cook County, a petition to revoke probation is referred to as a violation of probation, or VOP. In Lake County, a petition to revoke goes by the same name, a PTR.
A petition to revoke comes about when the State’s Attorney has reason to believe that the defendant has failed to comply with the conditions of his or her sentence. The State’s Attorney files a petition with the court and asks the judge to re-sentence the defendant. The defendant is entitled to receive notice of the petition by mail. The clerk sets a court date for the defendant to be arraigned on the petition, and the defendant must either admit or deny the allegations that he or she violated the sentence. If a denial is entered, then the PTR is set for hearing in which the State is given the opportunity to show that the defendant violated the terms of the sentence.
For sentences of supervision, conditional discharge, or probation, the defendant’s failure to fulfill a requirement of the sentence authorizes the judge to impose a new sentence on the defendant (e.g., re-sentence the defendant). The judge has authority to impose any sentence on the defendant, regardless of the first sentence imposed. For example, a defendant who was originally sentenced to supervision, which is not a permanent conviction, could be re-sentenced to probation, which is a conviction. Or, a defendant who was first sentenced to probation could be re-sentenced to jail. The only type of sentence in which the judge cannot re-sentence the defendant is where the sentence is straight jail time or a felony sentence to the penitentiary (DOC).
Petitions to revoke are not criminal cases. Therefore, the defendant does not have a right to remain silent and refuse to testify under the 5th Amendment. The prosecution can call the defendant as a witness to testify against him or herself in a revocation hearing. The most important distinction between PTRs and criminal cases is that the State does not have to prove the allegations in the PTR beyond a reasonable doubt. The PTR is a civil case, and as such, the burden of proof is only preponderance of the evidence (more likely than not).
Often the allegations in the PTR will be that the defendant has committed a new offense. This occurs when a defendant on probation is arrested and charged with a new misdemeanor or felony. This situation poses interesting legal questions for the defendant and his attorney which are outlined below.
Invalid Defenses to Petitions to Revoke
Insanity. Illinois law says that the defendant in a petition to revoke probation cannot assert a defense of insanity as he or she could in a criminal proceeding. The reason is, the PTR is a civil case, and there is no insanity defense in civil proceedings.
Failure to Pay Fines or Court Costs & Bankruptcy. When a court sentences a defendant to pay restitution, fines and court costs, he or she cannot discharge those debts in bankruptcy. That is, the defendant cannot declare bankruptcy to avoid paying fines, costs, or restitution as part of a sentence.
Double Jeopardy. If a defendant is found not guilty of a criminal offense, and that offense is also alleged as a violation of probation in a petition to revoke, the State is allowed to proceed on the PTR. The reason is, the standard of proof in the criminal case is beyond a reasonable doubt, but the burden is much lower for the PTR, preponderance of the evidence. The rationale for this rule is that even though the State was unable to prove the offense beyond a reasonable doubt, it may be able to do so if the burden of proof is the lower civil standard of preponderance of the evidence used in PTR hearings. Preponderance of the evidence is thought to be ‘more likely than not.’
Corpus Delicti. In criminal cases, there is a rule that a confession is not enough to prove that someone committed a criminal offense. There must be other evidence that corroborates the confession. The Latin phrase ‘corpus delicti’ means ‘body of the crime.’ The reason for this rule is that mentally ill persons claim to have committed political assassinations and other well known atrocities because of their delusions (e.g., “I killed Abraham Lincoln.”). As a society, we can’t incarcerate these persons because of their mental illness. Another reason for the rule is that lower-level members of gangs and organized crime will take the fall for high-ranking members and confess to something they didn’t do. None of the above, however, applies in a petition to revoke hearing. A confession standing alone is enough to prove that a defendant violated probation because the standard of proof is the civil preponderance of the evidence.
Violation of the Fourth Amendment. Evidence that was seized during a search that violated the 4th Amendment (e.g., no probable cause) can be used against the defendant in a petition to revoke proceeding. The reason is, the 4th Amendment protects citizens from police abuses in criminal cases, not civil cases.
Valid Defenses to Petitions to Revoke
Willful Refusal to Pay. If the court sentenced the defendant to pay fines, court costs, probation fees, or restitution, then the court can sentence the defendant for failure to pay. However, the rule is that the State must prove that the defendant’s failure to pay amounted to a ‘willful refusal’ to pay. That is, the State must show the ability to pay and a refusal to pay.
Double Jeopardy. If a defendant who is the subject of a petition to revoke is alleged to have violated probation, conditional discharge, or supervision because of a new arrest, and the State fails to prove the new offense during the PTR hearing, the defendant can win the criminal case on grounds of double jeopardy. The reason is, the burden of proof in the petition to revoke is the civil standard of preponderance of the evidence, which is ‘more likely than not.’ If the State cannot prove the charges by the lower standard of preponderance of the evidence, the State would never be able to prove the charges beyond a reasonable doubt. The new case, therefore, would be subject to a motion to dismiss for former prosecution (also called collateral estoppel, res judicata, or double jeopardy).
Fifth Amendment. The defendant in a petition to revoke probation can, if called to testify against him or herself by the State, plead the 5th Amendment privilege against self-incrimination (the right to remain silent). However, this is limited to circumstances where the subject of the hearing is a new criminal offense and the defendant would incriminate him or herself if called to the witness stand. If the subject of the PTR hearing is a non-criminal matter, such as failure to pay, there is no 5th Amendment privilege.
Timeliness of Petition to Revoke. A petition to revoke that was filed after the defendant’s sentence has run is too late and does not subject the defendant to being re-sentenced. A petition to revoke, if filed properly, has the effect of tolling the term of a defendant’s sentence until the PTR is ruled upon by the court. Technically, a defendant who is on probation and leaves the state, resulting in a PTR, will be on probation until the PTR is addressed (even if years have passed without incident). Therefore, the issue is whether the petition to revoke was filed properly so as to give the court jurisdiction over the defendant. To be properly filed, the PTR must be filed in conjunction with a warrant, summons, or notice from the circuit clerk.
In Cook County, a petition to revoke probation is referred to as a violation of probation, or VOP. In Lake County, a petition to revoke goes by the same name, a PTR.
A petition to revoke comes about when the State’s Attorney has reason to believe that the defendant has failed to comply with the conditions of his or her sentence. The State’s Attorney files a petition with the court and asks the judge to re-sentence the defendant. The defendant is entitled to receive notice of the petition by mail. The clerk sets a court date for the defendant to be arraigned on the petition, and the defendant must either admit or deny the allegations that he or she violated the sentence. If a denial is entered, then the PTR is set for hearing in which the State is given the opportunity to show that the defendant violated the terms of the sentence.
For sentences of supervision, conditional discharge, or probation, the defendant’s failure to fulfill a requirement of the sentence authorizes the judge to impose a new sentence on the defendant (e.g., re-sentence the defendant). The judge has authority to impose any sentence on the defendant, regardless of the first sentence imposed. For example, a defendant who was originally sentenced to supervision, which is not a permanent conviction, could be re-sentenced to probation, which is a conviction. Or, a defendant who was first sentenced to probation could be re-sentenced to jail. The only type of sentence in which the judge cannot re-sentence the defendant is where the sentence is straight jail time or a felony sentence to the penitentiary (DOC).
Petitions to revoke are not criminal cases. Therefore, the defendant does not have a right to remain silent and refuse to testify under the 5th Amendment. The prosecution can call the defendant as a witness to testify against him or herself in a revocation hearing. The most important distinction between PTRs and criminal cases is that the State does not have to prove the allegations in the PTR beyond a reasonable doubt. The PTR is a civil case, and as such, the burden of proof is only preponderance of the evidence (more likely than not).
Often the allegations in the PTR will be that the defendant has committed a new offense. This occurs when a defendant on probation is arrested and charged with a new misdemeanor or felony. This situation poses interesting legal questions for the defendant and his attorney which are outlined below.
Invalid Defenses to Petitions to Revoke
Insanity. Illinois law says that the defendant in a petition to revoke probation cannot assert a defense of insanity as he or she could in a criminal proceeding. The reason is, the PTR is a civil case, and there is no insanity defense in civil proceedings.
Failure to Pay Fines or Court Costs & Bankruptcy. When a court sentences a defendant to pay restitution, fines and court costs, he or she cannot discharge those debts in bankruptcy. That is, the defendant cannot declare bankruptcy to avoid paying fines, costs, or restitution as part of a sentence.
Double Jeopardy. If a defendant is found not guilty of a criminal offense, and that offense is also alleged as a violation of probation in a petition to revoke, the State is allowed to proceed on the PTR. The reason is, the standard of proof in the criminal case is beyond a reasonable doubt, but the burden is much lower for the PTR, preponderance of the evidence. The rationale for this rule is that even though the State was unable to prove the offense beyond a reasonable doubt, it may be able to do so if the burden of proof is the lower civil standard of preponderance of the evidence used in PTR hearings. Preponderance of the evidence is thought to be ‘more likely than not.’
Corpus Delicti. In criminal cases, there is a rule that a confession is not enough to prove that someone committed a criminal offense. There must be other evidence that corroborates the confession. The Latin phrase ‘corpus delicti’ means ‘body of the crime.’ The reason for this rule is that mentally ill persons claim to have committed political assassinations and other well known atrocities because of their delusions (e.g., “I killed Abraham Lincoln.”). As a society, we can’t incarcerate these persons because of their mental illness. Another reason for the rule is that lower-level members of gangs and organized crime will take the fall for high-ranking members and confess to something they didn’t do. None of the above, however, applies in a petition to revoke hearing. A confession standing alone is enough to prove that a defendant violated probation because the standard of proof is the civil preponderance of the evidence.
Violation of the Fourth Amendment. Evidence that was seized during a search that violated the 4th Amendment (e.g., no probable cause) can be used against the defendant in a petition to revoke proceeding. The reason is, the 4th Amendment protects citizens from police abuses in criminal cases, not civil cases.
Valid Defenses to Petitions to Revoke
Willful Refusal to Pay. If the court sentenced the defendant to pay fines, court costs, probation fees, or restitution, then the court can sentence the defendant for failure to pay. However, the rule is that the State must prove that the defendant’s failure to pay amounted to a ‘willful refusal’ to pay. That is, the State must show the ability to pay and a refusal to pay.
Double Jeopardy. If a defendant who is the subject of a petition to revoke is alleged to have violated probation, conditional discharge, or supervision because of a new arrest, and the State fails to prove the new offense during the PTR hearing, the defendant can win the criminal case on grounds of double jeopardy. The reason is, the burden of proof in the petition to revoke is the civil standard of preponderance of the evidence, which is ‘more likely than not.’ If the State cannot prove the charges by the lower standard of preponderance of the evidence, the State would never be able to prove the charges beyond a reasonable doubt. The new case, therefore, would be subject to a motion to dismiss for former prosecution (also called collateral estoppel, res judicata, or double jeopardy).
Fifth Amendment. The defendant in a petition to revoke probation can, if called to testify against him or herself by the State, plead the 5th Amendment privilege against self-incrimination (the right to remain silent). However, this is limited to circumstances where the subject of the hearing is a new criminal offense and the defendant would incriminate him or herself if called to the witness stand. If the subject of the PTR hearing is a non-criminal matter, such as failure to pay, there is no 5th Amendment privilege.
Timeliness of Petition to Revoke. A petition to revoke that was filed after the defendant’s sentence has run is too late and does not subject the defendant to being re-sentenced. A petition to revoke, if filed properly, has the effect of tolling the term of a defendant’s sentence until the PTR is ruled upon by the court. Technically, a defendant who is on probation and leaves the state, resulting in a PTR, will be on probation until the PTR is addressed (even if years have passed without incident). Therefore, the issue is whether the petition to revoke was filed properly so as to give the court jurisdiction over the defendant. To be properly filed, the PTR must be filed in conjunction with a warrant, summons, or notice from the circuit clerk.
