Legal Question in Criminal Law in Tennessee

if a person is on probation and commits a crime are they violated at the time of the offense or at the time of the arrest

Asked on 3/07/12, 4:23 pm

1 Answer from Attorneys

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If your question is: "Do I have to be convicted (found guilty) of a new offense before I can be found in violation of my probation", the answer is no.

Your probation officer can swear out a violation of probation warrant and file it with the court clerk based only on a new arrest. Of course, the new arrest is not proof that you actually committed a new crime, it is only probable cause to believe you committed a new crime. If the violation of probation hearing is held before the trial on the new charges, the prosecution would have to conduct a "mini-trial" on the allegations of the arrest in order to prove you violated your probation, the arrest alone is not proof you violated probation.

If your question is: "If my probation expired before I was arrested for the new offense -- even if I did the new offense while I was still on probation but they didn't arrest me until after probation had expired -- can I still be found in violation of my probation?" the answer is also no.

Your probation ends on the expiration of the term ordered by the judge unless a violation of probation warrant is sworn AND filed with the Clerk of the Court before probation expires. In part, that's why a probation officer can swear out a violation of probation warrant based only on a new arrest and doesn't have to wait for a conviction. Otherwise, the person on probation could stall out the trial on the new arrest until after probation expired. The swearing and filing of the violation of probation stops the running of probation.

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3/08/12, 7:32 am

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