“Felony Probation” – Your Top 7 Questions Answered

Felony probation (also called formal probation) is a sentencing alternative to prison that allows you to serve all or part of your sentence out of custody. You must

1. abide by certain terms and conditions of probation and
2. report to a probation officer.

Not everyone qualifies for felony probation. A judge determines eligibility by considering a variety of factors, such as:

• your criminal history and
• the severity of the crime committed.

In this article, our California criminal defense attorneys will answer the following 7 key questions:

• 1. What is felony probation?
• 2. Who is eligible?
• 3. How long does it last?
• 4. What are common conditions?
• 5. What happens if I violate felony probation?
• 6. Can I move or travel?
• 7. How does felony probation work in California?
• Additional Reading

1. What is felony probation?

Felony probation is an alternative to a state prison sentence in certain felony cases where you serve your sentence out of custody and under supervision. Felony sentencing guidelines give judges the option to impose prison or probation depending on the case.

2. Who is eligible?

Eligibility for felony probation depends on many factors, such as:

• the seriousness of the felony offense committed (violent crimes vs. victimless offenses),
• whether you were armed,
• your character,
• the victim’s losses (if any),
• whether your crime involved a complex plan,
• your prior record before the felony conviction,
• your attitude about probation, and
• the likely effect of imprisonment on you.¹

The judge must order a probation report from the county probation department and review its recommendations prior to sentencing.² In preparing the report, the probation department interviews the alleged victim and the officer that investigated the case.

At your sentencing hearing, your defense attorney argues that you deserve probation rather than incarceration. The prosecutor may either agree to probation or argue that incarceration is more appropriate.

Ultimately, the judge chooses whether to grant you probation.

3. How long does it last?

Felony probation generally lasts up to two years for most non-violent felonies. Though for more serious crimes, probation can last three to five years.

In some cases, the criminal statute itself spells out how long probation can last.

4. What are common conditions?

Felony probation rules (referred to as “terms and conditions”) typically include:

• regular meetings (usually monthly) with a probation officer,
• the payment of restitution (which can never be converted to community service),
• the payment of criminal fines and court fees (which can be converted to community service),
• submission to drug testing, in cases of certain drug crimes,
• performance of community service,
• abstaining from alcohol (especially in DUI cases),
• completion of a treatment program,
• community supervision,
• counseling (such as sex offender, anger management, or domestic violence counseling),
• group therapy,
• an agreement to submit to police searches,
• electronic monitoring,
• community labor days (such as beach trash collection, removing graffiti, or CalTrans cleanup work),
• county jail time (never state prison time),
• payment of court costs, and
• an agreement not to break any laws.³

5. What happens if I violate felony probation?

The court will hold a probation violation hearing. This is like a mini-trial where you can present evidence (such as witnesses, surveillance video, etc.) to contest the state’s claim that you violated probation.

There are several possible consequences of a felony probation violation. The court can:

1. give you a warning and reinstate the same terms (a “second chance”),
2. modify the terms and include harsher conditions, or
3. revoke probation and order the maximum county jail time or state prison time for your underlying offense.

6. Can I move or travel?

Felony probation often involves restrictions on moving and travel. In general:

• if you want to move, you must first get court approval, and
• if you want to travel, you must first get your P.O.’s consent.

7. How does felony probation work in California?

While on felony probation, you will have to adhere to certain probationary terms and conditions (similar to those set forth in Section 4 above). You are required to have regular meetings with a probation officer to ensure you are complying with these conditions.

Length of Probation

Felony probation typically lasts for just a couple of years. Though it can last up to three years for the following crimes involving more than $25,000:

• Grand theft – 487(b)(3) PC
• Embezzlement – 503 PC
• False personation and cheats – 532a PC

These two- or three-year probation limits do not apply to violent felonies or to crimes for which their statute specifies a certain probation period. In some cases, probation can last up to five years (60 months).⁴

Grounds for Ineligibility

In California, you are ineligible for felony probation if you are convicted of a felony and have a prior conviction for either:

• a violent felony under 667.5 PC or
• a serious felony under 1192.7 PC.

You are also unqualified for probation if you are convicted of a serious or violent felony while on felony probation. Certain sex crimes also render you ineligible if there are certain aggravating factors surrounding the crime.

Some examples of offenses which are usually not probationable include when you:

• inflicted great bodily injury on the victim,
• used a deadly weapon,
• hurt or killed someone in a drive-by shooting, a crime per 26100 PC, or
• furnished PCP.⁵

Expungements

You can obtain an expungement of a criminal offense if you complete probation. Once your record is sealed, it should not appear on future background checks (with some exceptions).⁶

Early Termination

If you are progressing well, a judge has the authority to grant an early termination of probation. A judge can also convert your formal probation into misdemeanor probation.

A requirement of early termination is that you complete at least 18 months of the term without violating a condition. In addition, you must also demonstrate to the court that:

1. you successfully completed the terms, and
2. there are factors that justify early termination.⁷

Felony vs. Misdemeanor Probation

The following table compares and contrasts felony and misdemeanor probation in California:

CALIFORNIA LAW	Misdemeanor Probation	Felony Probation
Length	Up to 2 years	Up to 5 years
Supervision Level	Unsupervised	Supervised (by probation officer)
Violation consequences	Depends on sentencing terms and judge’s discretion	Depends on sentencing terms and judge’s discretion
Travel Restrictions	Usually no restrictions	Usually have to get permission from probation officer
Possibility of expungement upon completion	Yes	Yes

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Civil Consequences of Conviction for a Felony – Drake Law Review.
• Appellate Review under the New Felony Sentencing Guidelines: Where Do We Stand – Cleveland State Law Review.
• Challenges to Felony Disenfranchisement Laws: Past, Present, and Future – Alabama Law Review.
• Taking Aim at Felony Possession – Boston University Law Review.
• Villainy and Felony: A Problem Concerning Criminalization – Buffalo Criminal Law Review.

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