Legal Question in Criminal Law in California

I have been on felony probation for five years. I have been told (and shown via computer screen) that my probation was to be discharged on 9 May 2013. This morning, I called probation to confirm that I am indeed released. I was told I am still on probation. I am told that, because my probation officer has been away for this past week, he has not typed whatever into the computer to officially release me. When I asked to speak to a supervisor (intending to ask why a supervisor has not done this), he frefused to speak to me. Instead, he told me via the receptionist that I will remain on probation until such time as my probation officer returns to the office, and enters the information into the computer himself. It was suggested to me that they might choose to keep me on probation for an additional two years. However, my paralegal has told me this can only be done by way of a probation modification hearing, which must be done prior to discharge date, and cannot be done after the fact. There has been no hearing. I have received no notification (neither in writing, by way of a personal, face to face conversation, by phone, nor by text message) informing me of any such extention. Indeed, each and every time I have spoken to my probation officer (the last time being the last week of April), he has confirmed to me that I would be released on schedule. All of this being said, am I still on probation? If so, is this a due process violation? Is this a civil rights violation? If I am, I wish to sue. Would this be a winnable case? If it is a due process/civil rights violation, can I site it as grounds for a outright dismissal? What are my chances in this? Good? Fair? Poor?

Asked on 5/10/13, 1:51 pm

2 Answers from Attorneys

Joe Dane Law Office of Joe Dane

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One step at a time. Your probation was for a period of time as set forth when you were sentenced. Only the judge can modify that - either to extend it or terminate it early. One limited exception... if you violated your probation at any time, and the court revoked your probation for a period of time before reinstating you on probation, that stops the clock on the term of probation.

For example, if you were placed on 3 years probation on 1/1/2012 and there was a petition to violate your probation a year later (1/1/2013), but you didn't have a hearing and get reinstated for six months (ordered reinstated on 6/1/2013), your probation may (not automatically, but it may) extend for another 6 months since you technically were not on probation while it was revoked.

Having said that, it's not up to a probation officer to release you. If your probation expired, it expired. And no, they can't just decide on their own to keep you on for an additional two years beyond what the judge said when they sentenced you.

Check with the clerk of the court to determine if your probation has expired or not.

Can you sue for being told that they haven't done some sort of paperwork ONE DAY after your probation was set to expire? There's a saying... anybody can sue for anything.... but there's probably no case there. Why? What are your damages? Is this momentary delay (if there even is one) causing you some sort of harm? Without damages, there's no lawsuit there. You'd be paying thousands and thousands of dollars in attorney fees and at best would get a judgment in your favor, but with an award of $0. Hardly worth pursuing.

Instead, just get this wrapped up and behind you. Check with the court to see if your probation has expired and you're off. If they say you're not, clarify and ask why - or better yet.... I can oly assume you were represented by an attorney when you were sentenced. Why not ask them?

Answered on 5/10/13, 2:28 pm

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