Just because a defendant is eligible for a conditional discharge, the Court may still deny the defendant the opportunity to enter the diversionary program. The court will consider the following conditions in making a determination of whether or not it will allow a conditional discharge:. Generally, the idea of a conditional discharge is that the defendant will undergo supervisory treatment and comply with certain conditions as a part of their diversionary program. The conditions will be imposed by the Judge.
The original charges are not necessarily dropped, but rather suspended. Therefore, if the defendant violates a term or condition of the supervisory treatment program, the suspension of the proceedings must be terminated, and the criminal proceedings must resume at the point where they were suspended. Furthermore, if the defendant violates the program as a result of picking up a new criminal charge, they must deal not only with the original charge but the new charge as well.
Upon completion of the terms and conditions of the supervisory treatment, the treatment is terminated and the proceedings against the defendant are dismissed. Therefore, no criminal record, no jail term, no license loss and no community service. If you get a conditional discharge , the record of your discharge will be kept on file for three years after the probation period is completed. After the one- or three-year period, the RCMP must delete any record of your discharge from their records.
No record of your discharge can be disclosed to anyone except in specific circumstances, such as if your fingerprints were found at the scene of a crime. With a suspended sentence , a judge convicts you but suspends sentencing you, and instead releases you on conditions set out in a probation order. Like with a conditional discharge, the probation order can last for one to three years. During that time, you must follow the conditions in the probation order.
You may have to perform community service , give money back to a victim, attend counselling, or report to a probation officer periodically. The main difference between a suspended sentence and a conditional discharge is if you get a suspended sentence, you have a conviction registered against you. This means you will have a criminal record. With a suspended sentence, probation may be the only penalty, or it can be combined with other penalties, including a fine or a jail term of less than two years.
You could get the following combinations: a fine and probation, or jail and probation, or jail and a fine. If you were given a conditional discharge, your discharge can be taken back by the court and replaced with a conviction.
This means you would have a criminal record. If you were given a suspended sentence, the court can bring you back to sentence you for the original offence. Depending on the details of the breach and your criminal record, the prosecutor the lawyer who presents the case against you can choose to charge you with either a summary or indictable offence.
Judges view a breach of a court order as a serious matter. A conditional sentence is a jail sentence you serve in the community, instead of in jail. You have to follow certain conditions, the same types as are used with probation orders.
As well, a conditional sentence usually has conditions that restrict your freedom. If you get a conditional discharge, a suspended sentence, or a conditional sentence, the judge can also make other orders.
The judge can:. A person convicted or discharged of a crime must pay a victim surcharge. The surcharge is:. The judge can also give you a higher surcharge. This surcharge is in addition to any other fine you get.
Even if you do not have money to pay the surcharge, the judge must still order it. But the judge can give you a long time many years to pay it. Or the judge can immediately find you in default for not paying the surcharge and give you a one-day jail sentence. Judgment of appellate court in State v. Davis , 29 CA , , reversed. Willfulness not an element of a probation violation; state need only establish that probationer knew of the condition and engaged in conduct that violated the condition.
Standard of proof needed to find a violation of probation discussed. Proper standard of proof in revocation of probation proceeding is that of a fair preponderance of the evidence; previous consideration of case, 33 CA , remanded for reconsideration, C. Reaffirmed prior holding that proper standard of proof for revocation of probation hearing proceeding is a fair preponderance of evidence and that revocation is on consideration of the whole record.
A probation revocation hearing has two distinct components. In determining whether defendant's probationary status should be revoked court has broad discretion and every reasonable presumption should be given in favor of the correctness of court's ruling. State may amend the factual basis for an alleged probation violation prior to a hearing under section.
If a specific condition of probation does not explicitly proscribe certain noncriminal conduct and can not be reasonably interpreted to proscribe such conduct, defendant must receive actual notice that continuation of the conduct could result in a charge of violation of a condition of probation.
Willfulness is not element of the offense of violation of probation. Court's findings that defendant violated probation were not clearly erroneous. Trial court did not abuse its discretion in revoking defendant's probation and reinstating prison sentence after defendant's urine tested positive for opiate. Court is vested with broad discretion in determining, on basis of the entire record, whether sentence of probation should continue or be revoked, and court may require defendant to serve the sentence imposed or impose a lesser sentence.
Trial court reasonably could have found, by a preponderance of the evidence, that defendant violated his probation by engaging in breach of the peace and criminal mischief and thus violated criminal laws of the state. State satisfied notice requirements when it recited the charges constituting defendant's violation of probation during both defendant's arraignment and probation revocation hearing.
0コメント