This is my next article in a series which will address whether a person convicted of a felony in Illinois may receive probation. My last post discussed eligibility for probation after a felony conviction. Several factors are considered when making the determination for probation such as the nature of the offense, any showing of remorse, and the defendant’s criminal record. In this article, I will address what it means for sentencing to be within the discretion of the Judge and the factors considered by the Court when making its decision. I will also explain how a skilled attorney can help advocate for probation. Hoping for probation is common but it is not a guarantee. The final decision is left to the Judge even if a defendant is legally eligible. If you or a loved one has been charged with a felony then contact my office to speak with a Peoria criminal defense lawyer.
Whether or not to grant probation for an Illinois felony is largely up to the Judge
The phrase “within the discretion of the Court” means that the judge has the authority to determine the appropriate sentence as long as it is not illegal. This includes the power to decide whether a defendant will serve time in the Department of Corrections or be placed on probation. The Judge is not required to grant probation even if the law allows for it. Probation is not a right. Rather, it is a sentencing option that judges may choose based on the unique facts and circumstances of each case. Defendants must realize that eligibility is only the first step. An individual could technically be eligible for probation but still end up serving a prison sentence if the Judge finds incarceration more appropriate.
Judges consider a wide range of factors when deciding whether to grant probation. These typically include a defendant’s prior criminal history (or lack thereof), their demonstrated level of remorse, the seriousness and circumstances of the offense, the presence of any victims, and what the defendant has been doing with their life. The Court may be more inclined to grant probation to an individual who is a first time offender, is working, pursuing education, supporting a family, and has taken responsibility for their actions. A Judge may see prison time as the only appropriate outcome if the defendant has a long criminal record, shows no remorse, or committed a particularly serious crime.
An experienced criminal defense lawyer can help make the best possible case for leniency when it comes to sentencing. This includes gathering mitigating evidence like character letters, proof of employment, enrollment in school, or substance abuse treatment. An attorney can also present information in Court that reveals you as an individual rather than simply a criminal defendant. Details about your life and what you are actively doing can have an impact on the Judge’s sentencing decisions.
Illinois defendants will have reduced rights while serving probation
It is critical to understand what it means to be granted probation and how your rights are restricted while serving the sentence. You give up several rights that other citizens still enjoy. For example, a probation officer can come into your home without a warrant. Law enforcement may be able to search your car or belongings without the same legal process they would need for someone who is not on probation. You must also comply with strict terms, which may include drug testing, curfews, employment requirements, and restrictions on travel.
You risk having your probation revoked if you violate any of the terms of your probation. Common violations include:
- Failing to check in with your probation officer
- Moving without sending notification
- Failing drug tests
- Committing a new criminal offense
- Missing required Court-ordered classes or community service
Your probation officer will file a report with the Court if they believe you have violated a condition. A Judge will then hold a hearing and decide whether to continue your probation, modify it, or revoke it.
It is essential to retain an experienced attorney as soon as you are charged with a felony as both sentencing and probation violations carry such serious consequences. A defense lawyer can help you understand your options, prepare your case for sentencing, and advocate for the best possible outcome. Contact my office today to speak with a criminal defense attorney if you or a loved one is facing felony charges. I am a former prosecutor who is dedicated to representing individuals who are accused of crimes in Illinois. We also serve clients in Bloomington, Decatur, Eureka, Galesburg, Morton, Normal, Pekin, Springfield, and Washington and the counties of Fulton, Knox, LaSalle, Marshall, Mason, McLean, Putnam, Rock Island, Schuyler, Stark, Tazewell, and Woodford. Additional areas where we handle federal cases include Benton, Chicago, East St. Louis, Springfield, and Urbana.