UPDATE: Due to the short deadlines involved and the significance of our own caseload, we are no longer taking probation revocation appeals. We have left this post up for informational value only.
Individuals who are placed on extended supervision often face confusing rules and procedures that make it difficult to successfully complete their term of probation. If an individual’s probation agent believes that a probationer violated the conditions of his or her probation, the individual’s probation may be revoked. Although a probation revocation may be appealed, the probationer must act quickly in order to preserve his or her right to do so. There are two ways to appeal a probation revocation decision (1) administrative appeal, and (2) judicial review.
Administrative Appeal
This is the more common avenue through which to appeal a revocation decision. This type of appeal asks an administrator to modify the administrative law judge’s decision based on evidence presented at the hearing
The first step in filing an administrative appeal is serving the administrator and other party with a written appeal that includes (1) written arguments, and (2) supporting materials. This must be filed within 10 days from the date of the written decision revoking probation. HA 2.05(8)(a). Once served, the other party has 7 days to respond. HA 2.05(8)(b). After the other party has responded, the administrator will consider the evidence and decide whether to modify, sustain, reverse, or remand the administrative law judge’s decision. The administrator has 21 days within which to render this decision. HA 2.05(9)(b).
Judicial Review
A probationer may also appeal a revocation decision by seeking judicial review of the decision. In this case, the court that originally sentenced the probationer will review the revocation decision.
In order to initiate a judicial review, the probationer must file a writ of certiorari with the sentencing court within 45 days of the written revocation decision. The reviewing court will then review whether there is substantial evidence to support the revocation. If the reviewing court finds substantial evidence to support the decision, it will affirm the revocation, even if the probationer offers evidence that could support a contrary determination. It is worth noting that the standard is not the same as with a criminal trial (proof beyond a reasonable doubt), but much lower (substantial evidence). Further, the evidentiary rules that apply at trial do not apply at probation revocation hearings.
To speak with a knowledgeable attorney about appealing your probation revocation, contact The Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).