EARLY TERMINATION OF PROBATION
If you are on probation, you want to get discharged from probation as soon as possible and move on with your life. As a criminal defense attorney practicing in Las Vegas, I have helped many people end their probation early. Some of these people are existing clients who I represented from Las Vegas Justice Court all the way through to sentencing in Clark County District Court. Other people who contact me about early probation release are men and women who were represented by a different criminal defense lawyer at sentencing. Whether I represented you at sentencing or some other defense attorney did, or you are interested in finding out information about probation termination, read the following article. In this article I explain the legal basis under Nevada law for a judge's authority to let you off probation early. I then explain in detail the several factors that should be considered by a criminal defense attorney in forming an opinion about your chances for early release from probation. Then I describe the procedure for getting probation terminated early. Finally, I explain how a lawyer like me can help you with your case.
EARLY RELEASE FROM PROBATION: THE LAW
"How can the Judge end my probation early?"
A District Court Judge in Las Vegas has the authority to terminate your probation early if you file a motion requesting release from probation and the judge grants that motion. For criminal cases in Clark County, Nevada, the authority of a District Court Judge to end probation early comes from Nevada laws, or statutes. What are these statutes? Read below.
NRS 176A.100 states that a judge has the authority to suspend a jail or prison sentence and instead sentence the defendant to a period of probation. When a criminal defendant is on probation, he must follow certain rules and complete certain court orders, all while under the supervision of the Nevada Department of Public Safety, Parole and Probation division ("Parole and Probation" or just "P&P." The defendant is subject to revocation of probation if he doesn't follow the "terms and conditions" of his probation.
Under NRS 176A.400, when a judge grants probation, the judge decides the terms and conditions of probation that the defendant will have to follow to stay out of jail or prison. Common terms and conditions are to get a job, pay restitution, abide by a curfew, attend counseling, or complete community service. Pursuant to NRS 176A.450, since the judge can set the terms and conditions of probation, he may also, at any time, modify the terms and conditions of probation.
NRS 176A.500 grants the judge authority to set the duration of probation. Based on this statute, the sentencing judge can place the defendant on probation for up to 3 years for gross misdemeanors, and up to 5 years for felonies. This statute also grants the judge the power to extend the term of probation, but not past the previously referenced maximums (3 years maximum for gross misdemeanors, 5 years maximum for felonies). The term of probation may be fixed (for a definite period of time) or indeterminate (not to exceed a certain period of time, but possibly less than that time).
So by statute, the judge has statutory power to set and modify terms and conditions of probation, and also to set the duration of probation. These powers imply that the judge also has the power to end probation early. Moreover, NRS 176A.500 explicitly states that the judge may terminate probation "at any time." This is an unlimited right under NRS 176A.500, meaning Parole and Probation technically doesn't have any say in the matter.
The judge's statutory power to terminate probation seems to be limited by NRS 176A.850. This statute states that a judge may grant a probationer an "honorable discharge" from probation only when (1) the probationer finishes out the full term of his probation and complies with all the terms and conditions of probation; (2) Parole and Probation recommends that the probationer be released early from probation; or (3) the probationer fulfills all terms and conditions of probation except for repaying restitution but demonstrates economic hardship as verified by Parole and Probation. But does this statute actually prevent the judge from terminating probation early? No. First, this statute only pertains to receiving an "honorable discharge" from probation. An honorable discharge means that in your file it will be noted that you completed probation honorably. This statute doesn't limit the judge's power to grant a dishonorable discharge. Moreover, and more importantly, because the judge can shorten the length of probation at his discretion, and can furthermore modify terms as he sees fit, the judge can always order that the probationary term be shortened and unfulfilled terms be eliminated, so that the probationer qualifies for early honorable discharge from probation without the consent of Parole and Probation. Additionally, if you were sentenced to serve an indeterminate term of probation (which is far more common than a fixed term) then you're
not actually asking the judge to modify your term of probation when you file a motion for early discharge. As such, as long as you're otherwise compliant with the terms and conditions of your probation, you qualify for honorable discharge, with or without the consent of Parole and Probation, as long as the judge agrees.
Here are some examples. Let's say you are placed on a 5 year indeterminate term of probation. You have been on probation for 3 years. Parole and Probation will not agree to recommend early discharge. Can you get off probation before 5 years? Possibly. You can still petition the judge to terminate your probation, and as long as you are otherwise compliant with the terms and conditions of your probation, you're not actually asking the judge to even modify your probation. Your term was indeterminate, meaning it could not be more than 5 years, but it could be less. So the judge can grant your motion to terminate probation without even ordering that the terms or duration of probation be modified. Now change the facts. You're placed on a fixed term of probation for 3 years. With 1 year left to serve, you file a motion for early discharge from probation. Parole and Probation doesn't agree to early discharge. Can the judge grant your motion to terminate probation? Yes. The judge can terminate probation at any time, and can give you a dishonorable discharge even if you didn't fulfill several terms and conditions of probation. But the judge can also give you an early honorable discharge from probation by modifying the duration of probation to 2 years instead of 3, and modifying the terms and conditions of probation by eliminating any terms you didn't fulfill.
As you can see in the examples above, the judge's statutory right to terminate probation is unqualified. And the judge's power to modify terms and shorten duration of probation mean that the judge can grant an honorable discharge from probation at any time. Some judges, however, take NRS 176A.850 to mean that early discharge from probation must be approved explicitly by Parole and Probation. To these judges, you must explain that technically, you're not asking for early discharge, but rather a modification of the duration of probation (and possibly the modification of terms). What's the difference? It's all semantics, really. It's just using different words that mean the same thing. But in the law, sometimes the way you word your request can make all the difference.
THE CHANCES OF GETTING OFF PROBATION EARLY
"Will the judge actually let me off probation early?"
Before you pay a criminal defense lawyer to file a motion for early probation termination, I'm sure you want to know how likely it is that the judge will actually grant that motion. No defense lawyer can ever predict with 100% certainty what the judge will do at the hearing for your motion for early termination of probation, but there are certain factors that can make success more or less likely. Read about these below, but keep in mind, in order for a criminal defense attorney to give you a proper evaluation, he must evaluate all of these factors as a whole, because they aren't necessarily going to have equal importance in predicting whether you will be released from probation early.
The Judge. This is the first factor because it is the judge who is going to be considering all of the factors that follow, and it is the judge who ultimately will be granting or denying our motion for early release from probation. A District Court Judge has a great deal of discretion in granting motions like this. And no two judges are the same. They each have their own beliefs and tendencies. So under the same exact facts, some judges would be more likely than others to grant our motion for early release from probation. That might not seem fair, but it's true. That's why it's important to hire a criminal defense attorney who appears regularly in front of your judge. There are currently
32 District Court Judges in Las Vegas, although 14 of these judges do not hear criminal matters. That means that there are 18 different judges who could be assigned to your case. You have already seen the judge who will be deciding our probation termination motion—it is the same judge who sentenced you, unless that judge has retired, been voted out of office, or if your case has been reassigned to another department (usually because one judge has switched from a criminal to a civil calendar). Additionally, you might have a different judge decide your motion if the assigned judge is not present on the day your motion for early termination of probation is to be heard. In that case, a substitute judge will hear the motion instead. There are several substitute judges who appear regularly for absent District Court Judges. These are senior judges who have retired from the bench. Experienced criminal defense attorneys who practice in Las Vegas courts will be familiar with your judge and any possible substitute judge and will have a good idea how your judge (whether assigned or substitute) tends to rule on similar motions.
The Crime. What was your criminal charge that you pled guilty to (or were found guilty of)? The more serious the charge, the less likely the judge will be to let you off probation early. Nevada has 5 categories of felonies, ranging from most serious, category A, to least serious, category E. Generally, it will be more difficult to get off probation early for an A or B felony than a C felony or lower. This is not always true, however. A person might be more likely to get off probation early for a non-violent retail
burglary (category B felony) than a
battery with substantial bodily harm (category C felony). A good criminal defense attorney can tell you which offenses are considered more or less serious.
Length of Time on Probation. How long you've been on probation—or in other words, how much time you have left on your term of probation—is a very important factor for evaluating whether you can reasonably expect that the judge will let you off probation early. Chances are, if you were given five years probation and have served 6 months, then the judge will probably not let you off probation early. Not
that early, anyway. But if you have 1 year left on a 5 year term of probation, you will have a much better chance. There are exceptions to every rule, however, so don't assume a motion to termination probation early will be denied by the judge just because you have substantial time left on your probation term. Talk to a criminal defense attorney like me first before giving up hope.
- Probation Fixed or Indeterminate. Probation can be fixed, meaning it's for a set time period, or it can be indeterminate, which means it can be for a term "not to exceed" a certain number of years. So you may have been given a fixed term of 3 years probation or a term not to exceed 3 years probation. For the fixed term, you're doing 3 years probation (minus good time credit). For the indeterminate period, you can't do more than 3 years, but you could do less. Judges are far more likely to let you off probation early if you have an indeterminate period rather than a fixed term. Why? Because with a fixed term, the judge is saying that he wants you to do a certain amount of time on probation. With an indeterminate period, the judge is saying that number, whatever it is, should be the upper limit of your probationary term. It can't be more than X years, but it could be less than X years. So what better way is there to tell the judge that you have been on probation long enough and he should grant your motion for early release from probation? With a fixed term, when you ask to get off probation early, you're asking the judge to change the actual sentence, which judges are hesitant to do. On the other hand, when you have an indeterminate period of probation, early termination is completely consistent with the judge's original sentence, since an indeterminate period means probation can be less than the term of probation imposed. This doesn't mean it's impossible to be released early from a fixed term of probation—just less likely. You probably don't know whether your probationary period was fixed or indeterminate. The court doesn't usually make it very clear, and it's not something that many defense lawyers seem to explain to their clients. But a criminal defense attorney like me can easily look up whether your probation period was fixed or indeterminate.
Performance on Probation. How you have done on probation is a very important factor in predicting whether you can successfully petititon for early termination of probation. What is "doing well" on probation? Generally, it means following the terms and conditions of your probation (i.e., not violating those terms). The terms will depend on which were imposed, but common terms include paying probation fees, paying restitution, getting a job, getting a place to live, completing counseling, doing community service, passing drug tests, not leaving the state without permission, and keeping in contact with your probation officer. But doing well on probation is what I would call "necessary but not sufficient" for early release from probation. What I mean is, doing poorly on probation will get your motion for early release denied quickly. If you were up for revocation and just barely got reinstated, or if you owe Parole and Probation months of back fees, your motion to end probation early will get denied. But at the same time, simple compliance alone is not going to get your motion granted. To put it another way, doing well on probation basically just keeps you in the game. However, doing
exceptionally well may help. For example, if you have several thousand dollars in restitution and pay it off in just a couple months, that will probably impress the judge. So will participation in additional counseling or mentorship of others in similar situations. If you are reading this article and want to end your probation early but feel like now might be a little premature, you still might want to contact a criminal defense attorney who will have suggestions about things you might do now to increase the chances of getting your probation termination motion granted a few months from now.
- Your Probation Officer's Position. The judge ultimately makes the call whether or not to end probation early, but judges will usually give great deference to the opinion of your assigned probation officer. There are generally four positions your probation officer can take when you ask him how he feels about you getting off probation early. The first and most favorable position he can take is to agree that you should be let off probation. This is not very common. Slightly less favorable is to have no opposition to ending probation early. When he takes this position, the officer is saying he is not opposing early termination, but technically he isn't affirmatively saying he wants you off probation early. Some judges, however, will treat these two positions as the same, and if you can get your probation officer to not oppose early termination, you will be in great shape for success on the motion. Less favorable is not taking any position. Technically this might sound the same as non-opposition, since neither takes an affirmative stance about how the motion should be decided, but in practice, judges treat non-opposition differently than stating no opinion whatsoever. The only truly unfavorable position that Parole and Probation can take is to oppose early release from probation. Keep in mind, however, that even if your probation officer opposes early probation termination, the judge can still grant your motion. And judges vary as far as how much they care about the opinion of Parole and Probation. Moreover, even if you already raised this issue and got the wrong answer, a criminal defense attorney might be able to talk to your probation officer and get him or her to agree not to oppose early termination as long as that's what the judge wants to do. On a related note, the judge usually cares about the position the prosecutor takes as well with respect to ending your probation early, but the prosecutor usually just defers to Parole and Probation, so I haven't listed the prosecutor's position as a separate factor.
Compelling Reasons for Early Termination. No one likes being on probation. But aside from the invasiveness and general unpleasantness of being under the supervision of Parole and Probation, if you have a particular reason why you don't just
want to end probation early, but basically
need to get off probation as soon as possible, the judge might be more likely to grant your motion. Here are some examples. Let's say you need to travel to other states for a job. A standard term of probation is to not leave the state without permission. That can cause a hardship if waiting for approval to travel could cause you to lose a job opportunity. Or let's say you are entitled to a "drop down" from a felony to a gross misdemeanor once you finish probation. Once the case is over you won't have a felony, but while you are on probation a felony is showing up on background checks, limiting your job prospects. There are many other examples. Your criminal defense attorney will know, however, to be careful not to rely too heavily on these "compelling reasons" for early termination of probation, because sometimes the judge will simply modify the terms of probation to "fix" the issue but keep the defendant on probation. For example, in one of the examples above, the judge might change a term of probation to make national or international travel quicker, but not end probation.
These are the factors that will determine whether the odds are good or bad that the judge will grant your motion to end probation early. As I've stated above, don't make the mistake of believing that one factor will determine success or failure, and ask a criminal defense attorney like me before you make a decision to move forward with the motion. If you do decide to move forward, read below to learn about the procedure for ending probation.
PROCEDURE TO END PROBATION EARLY
"What do we do first? How long will this take?"
Once you decide you want to try to get released early from probation, you need to file a motion for early termination for probation. This motion is submitted to the Clark County District Court Clerk electronically via the District Court's e-filing system. The Clark County District Attorney (or in some cases the Attorney General, if they prosecuted you) will be notified of the filing. You will want to make sure you have sent a courtesy copy of the motion to the DA, or the process can be delayed. Once the clerk accepts and files the motion, she will give you a date for the hearing on the motion. This will generally be about 3 weeks after motion is filed. This time period gives the prosecutor a chance to respond to the motion (usually they will be opposing the motion) and gives you a chance to reply to the prosecutor's response. Generally, a reply is not going to be necessary. The motion, the response (opposition), and reply (if any) are collectively called the "pleadings." The judge will review the pleadings prior to the hearing. In the meantime, the prosecutor will contact Parole and Probation and talk to your probation officer. Soon, the day of the hearing will arrive.
Your motion for early release from probation will be heard by the District Court Judge during the assigned court's normal criminal calendar. The day of the week for your hearing will vary by department. Some judges schedule motion hearings for Monday and Wednesday, others do Tuesday and Thursday, and others might even schedule motion hearings for Friday. Times for hearings vary by department as well, but Clark County District Court calendars generally start at 8:30 a.m., 9:00 a.m., or 9:30 a.m., although a few judges start earlier. Your case doesn't have an exclusive set time. Instead, it shares a time with most of the other matters on calendar that day. So your motion for probation termination might be scheduled for 9:00 a.m., but that time is simply when the criminal calendar begins in that department, and several other criminal matters are set for the same time, including sentencing hearings, probation revocation proceedings, changes of plea, bail hearings, bench warrant returns, and many others. How busy the court's calendar is (i.e., how many criminal matters are scheduled) on a given day varies widely from day to day and from department to department. Some days are extremely busy and hectic, with dozens of criminal matters on calendar, while other days have far fewer criminal cases scheduled for hearing. And some departments handle their calendars more efficiently than others, so some judges' courtrooms always seem busier than others, even though the caseloads may be similar.
On the date of the hearing, the judge will hear oral argument. Because you are filing the motion and asking for an order ending probation early, you have the burden to convince the judge and so you get to argue first. Some judges like you to orally repeat your entire argument as it appears in the written motion, while others will ask you only to raise new points (i.e., points not raised in the written pleadings) in oral argument. Next the prosecutor argues, and if your probation officer shows up to the hearing, the judge will hear from him. If the probation officer doesn't show up to the hearing and the prosecutor couldn't get in contact with him to determine his position, the judge might continue the hearing for another date.
Once oral argument has been heard, the judge will make a decision right then and there. If the motion is granted, you're off probation. If the judge denies the motion, you have to continue on probation for the time being, but usually the judge will tell you that you can file the motion again after some more time has passed or other conditions are met. Whether the motion to end probation is granted or denied, the issue will generally be decided in under a month, as long as your defense attorney is quick about contacting your probation officer and filing the motion.
WHAT A CRIMINAL LAWYER CAN DO
"Can you help me with my case"?
If you are on probation for a criminal charge in Las Vegas and you want to get off probation early, I may be able to help you accomplish that. Give me a call or send me a text if you'd like a free consultation, or send me a message through this website if you prefer. All I need is your name and I can look up your case in the online database for criminal records for Clark County District Court. Between the information I can find online and some additional information from you about how you've been doing on probation, I will give you an honest opinion about the chances your judge will grant our motion for early probation termination. So if you are interested in getting off probation, I can definitely help you, if only to give you a realistic and accurate case evaluation. If I think there's no chance the motion will be granted, I will tell you so. I don't take money from clients if I don't think I can help them.
If, after I tell you what I think our chances are, you decide that you want to move forward with the motion, I will want to contact your probation officer to see if he or she is willing to agree to terminate your probation early, or if not that, at least not oppose our motion (i.e., stay silent and defer to the judge's discretion). Once we get an answer to that question, I can file the motion the same day and we can be on calendar for a hearing on our motion in a few weeks, subject to the court's availability. Then I will go to the hearing to argue our motion orally before the judge. You will attend the hearing, if possible. I will argue on your behalf that you should be released from probation early. We will know on that date whether the judge has decided to grant or deny our motion.
I have helped many people end their probation early in Las Vegas. I can't guarantee you the same result. But if you want to have your parole officer out of your life now, don't hesitate to contact me for a free consultation. If I think we have a good chance of success and we can come to an agreement about attorney's fees, then I will file the motion quickly and the matter can be decided, one way or the other, in under a month. So call or text me at the cell phone number on this website's banner, or send me a message through this website. There is a chance that with my help you can stop worrying about potential revocation and incarceration and save yourself years of restrictive supervision.
By Michael Pandullo