Every criminal offense has a maximum penalty that can be imposed by the prosecution. Incarceration and/or probation are generally the possibilities available when determining a criminal sentence. The length of either probation or incarceration is determined by the offense.

Being incarcerated conjures up fears of being away from your family, your job and losing your freedom. The possibility of incarceration can be frightening for anyone. Probation may seem like the best option. After all, your case will be resolved but you will get to keep your freedom, your family and your job. Before accepting an offer of probation it is important to consider exactly what it means to be on probation, what probation requires and the restrictions that come with it.

What is Probation?

To understand this you must first understand – what is probation? Probation is a court imposed supervised custody where by the probationer is allowed to reside in the community but is still under the control of the court. Probation is imposed after the case has been resolved either by way of plea or trial.

The court sets the terms and conditions of probation, however, the court can accept the terms and conditions negotiated by the parties as apart of the plea agreement.  The standard conditions of probation include, but are not limited to, reporting to the Probation officer as directed, allowing the probation officer to conduct home visits, to work at an approved location if possible, remain in a specified place, to live without violating the law and to not associate with persons engaged in criminal activity.


The Court can impose special conditions/additional conditions to the standard conditions. These special conditions can be determined by the nature of the crime, the allegations or by the type of probation that an Offender is sentenced to.  Many people find that being sentenced to probation is more restrictive than being incarcerated due to all of the conditions and rules associated with being supervised by probation.


Failure to abide by the conditions assigned to your case can result in a violation of probation.  The consequences of violating probation can be more severe than the sentence that would have been imposed had you accepted the incarceration offered at the time of the plea. The Prosecution usually does not give credit for the time that an offender was successfully on probation before violating. You may now score prison because a violation of probation will add points to your score sheet.  An important consideration that is often overlooked is that the court may be less lenient on an offender who violates probation because the court may see the violation as a sign of disrespect shown to the court by the offender.

The standard to prove a violation is much lower than that of a trial. An offender is not entitled to a trial to prove the violation. The Prosecution only needs to satisfy the consciousness of the court to prove that a violation has occurred.  In some instances the offender can be held in custody and not given a bond until the resolution of the violation.

Kenneth Padowitz, P.A. – Criminal Defense Law Firm

Usually the term of incarceration will be less than probation if the Prosecution offers an option of either incarceration or probation.  Whether or not probation will be a good resolution depends upon a variety of factors.  A criminal defense attorney can assist you through this process. Your attorney will be able to analyze your case and advise you on what an appropriate resolution for your case may be.