Sentences Upon Violation of Probation

If a judge finds you guilty of violating probation, the judge could sentence you to jail or prison.

1. "When the court revokes a suspension or probation,it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted." N.J.S.A. 2C:45-3(b).

2. When determining a term of imprisonment for a defendant who has violated probation, the only aggravating factors that a court may properly
consider are those that existed at the time of initial sentencing. The violation of probation itself may not be considered. State v. Baylass, supra, 114 N.J. at 176. However, the defendant's amenability to probation may be considered in weighing the mitigating factors, such as his or her ability to lead a law-abiding life and the likelihood that he or she will respond affirmatively to probationary treatment. Id. at 177. Hence, when sentencing a defendant for a violation of probation, a court should consider the aggravating factors found to exist at the original hearing and the mitigating factors as affected by the probation violation. Id. at 178; accord State v. Molina, 114 N.J. 181, 184-85 (1989).

3. It will be a rare case in which the balance of the original aggravating factors and the surviving mitigating factors weighs in favor of a term of imprisonment greater than the presumptive or in favor of a period of parole ineligibility. State v. Baylass, supra, 114 N.J. at 178.

4. The Baylass standards must be followed even where a court is resentencing for a violation of probation following a negotiated plea agreement pursuant to N.J.S.A. 2C:35-12, by which the prosecutor waived a mandatory minimum. In such a case, however, the court retains the discretionary authority to impose a parole ineligibility term under appropriate
circumstances and based on adequate findings. State v. Vasquez, 129 N.J. 189, 205 (1992).

5. Where a term of incarceration is imposed following the revocation of probation on a crime that calls for an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(a), that parole
disqualifier is mandatory and cannot be waived or shortened by the sentencing court. State v. Kearns, 393 N.J. Super. 107, 112-13 (App. Div.
2007).

6. A recommendation by the State that a defendant's sentence be downgraded to one degree lower, pursuant to N.J.S.A. 2C:44-1(f)(2), does not survive a violation of probation. State v. Frank, 280 N.J. Super. 26, 40-41 (App. Div.), certif. denied, 141 N.J. 96 (1995).

7. The Baylass standards apply only where the defendant was originally sentenced to a probationary term that was then violated, not where the defendant was originally sentenced to a custodial term and then placed on probation after a R. 3:21-10(b)(1) motion. In the latter case, the court does not have to readdress the "in/out" decision because it has already determined the appropriate custodial term and amended it to permit enrollment in a drug treatment program. State v. Williams, 299 N.J. Super. 264, 270 (App. Div. 1997).

8. The Baylass guidelines also apply to sentencing
upon a violation of suspension of sentence. State v. Hannigan, State v. Cullen, supra, 351 N.J. Super. at 511. The Code treats similarly the consequences of a probationary sentence and a suspended sentence, and an offender for whom imposition of sentence has been suspended should
face no harsher consequences for violation than one who has been sentenced to probation. State v. Cullen, supra, 351 N.J. Super. at 510.

9. The Baylass standards are not wholly applicable to indeterminate sentences for youthful offenders, which serve a different purpose than ordinary sentences. State v. Hannigan.

10. A court should not sentence a pregnant probation violator to prison for the purpose of protecting the health of her fetus, because such a consideration is unrelated to the principles underlying the Code. State v. Ikerd, 369 N.J. Super. 610, 620-22 (App. Div. 2004).