Jason Apollo Hart, Attorney at Law
A lot of our clients ask us about shock probation. Especially when they are about to serve or may serve a jail or prison sentence for their case. Ideally, our clients would prefer not to return to jail, but in some cases that can not be avoided. At this point it is important to start planning a possible motion for shock probation. There are both pros an cons to filing a motion for shock probation. It is not appropriate in all cases, and certain convictions prohibit individuals from filing for shock probation. It is important when considering shock probation to have a plan regarding why your judge should grant you the priviledge of shock probation. It is also import to convince the prosecution and any possible victims in your case to possibly support the motion if possible.
Shock Probation in Misdemeanor Cases
Ky. Rev. Stat. Ann. § 439.267, is the law that governs shock probation in misdemeanor cases. Misdemeanors are of course cases that are punishable by (twelve) 12 months or less in the county jail or detention center. The statute permits any district or circuit court to grant shock probation "upon motion of the defendant made not earlier than thirty (30) days after the defendant has been delivered to the keeper of the institution to which he has been sentenced." The court may "suspend the further execution of the sentence and place the defendant on probation upon terms as the court determines."
The trial court is required "within sixty (60) days of the filing date of that motion, and shall enter its ruling within ten (10) days after considering the motion." You may, in the discretion of the trial court, have the right to a hearing on any motion he or she may file, or have filed for him or her, that would suspend further execution of sentence.
If the court denies your motion for shock probation, it is not reviewable on appeal.
It is important that the court and the prosecution be provided with some reason why you should be granted shock probation. Did you complete a note worthy program at the jail or detention center? Did you get into a substance abuse treatment program? Did you pay a substantial portion of your restitution and line up employment to pay the rest? Have you come up with a plan to avoid returning to jail or committing new criminal offenses?
Certain Misdemeanor Sex Offenses
If you have been convicted of a misdemeanor offense under KRS Chapter 510 (sex offenses), or criminal attempt to commit any of these offenses under KRS 506.010 (sex offenses), prior to considering the motion to suspend the sentence, the court may, for a misdemeanor offense order an evaluation by a sex offender treatment program.
Felony Shock Probation
Ky. Rev. Stat. Ann. § 439.265, governs shock probation in felony cases. A felony is any criminal charge punishable by more than a year in prison. "Any Circuit Court may, upon motion of the defendant made not earlier than thirty (30) days nor later than one hundred eighty (180) days after the defendant has been incarcerated in a county jail following his conviction and sentencing pending delivery to the institution to which he has been sentenced, or delivered to the keeper of the institution to which he has been sentenced, suspend the further execution of the sentence and place the defendant on probation upon terms the court determines."
Time spent on any form of release following conviction shall not count toward time required under this section.
The court shall consider any motion filed within sixty (60) days of the filing date of that motion, and shall enter its ruling within ten (10) days after considering the motion. You may, in the discretion of the trial court, have the right to a hearing on any motion for shock probation.
Like misdemeanor shock probation, the circuit court's decision is not reviewable on appeal.
The same arguments for shock proabtion in misdemeanor cases apply in felony shock probation. However, you should have an even stronger argument for why the Court should probate you on your felony offense.
Placement In A Local Jail Until Shock Motion Is Ruled On
During the period in which you may file a motion for shock probation, the sentencing judge, within his or her discretion, may order that you be held in a local detention facility that is not at or above maximum capacity until such time as the court rules on said motion. During this period of detention, and prior to the court's ruling on said motion, the court may require you to participate in any approved community work program or other forms of work release. If you are held in the county jail you shall not be subject to transfer to a state correctional facility until the decision is made not to place the you on shock probation.
Concerning community work programs or other forms of work release shall apply only to individuals convicted of Class C or Class D felonies, and may be granted only after a hearing at which the Commonwealth's attorney has the opportunity to present arguments in favor or opposition thereto.
Certain Felony Convictions Do Not Qualify For Shock Probation
If you are a violent offender (as defined in KRS 439.3401), the sentence can not be probated. You are not elligible for probation if you have been convicted of:"1. A violation of either KRS 507.040 or 507A.040 and a violation of KRS 189A.010 arising out of the same incident; or2. A violation of either KRS 507.050 or 507A.050 and a violation of KRS 189A.010 arising out of the same incident.(5) If [you have] been convicted of an offense under KRS 510.050, 510.080, 530.020, 530.064(1)(a), or 531.310, or criminal attempt to commit any of these offenses under KRS 506.010, the sentence shall not be suspended, in accordance with KRS 532.045."
Of course, you are not eligible for shock probation where a sentence of death has been imposed.
Felony Sex Offenses
For any felony offense sex offenses the court will order an evaluation of the defendant, unless one has been completed within the last six (6) months, to be conducted by the sex offender treatment program operated or approved by the Department of Corrections or the Department for Behavioral Health, Developmental and Intellectual Disabilities. The evaluation shall provide to the court a recommendation related to the risk of a repeat offense by the defendant and the defendant's amenability to treatment, and shall be considered by the court in determining whether to suspend the sentence. If the court suspends the sentence and places the you on probation, the provisions of the sex offender registry and post incarceration supervision will apply.
In conclusion, it is very important to talk to your attorney and have a plan if you are considering a motion for shock probation.