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Federal Probation Violation

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I'm serving a 3 year probation sentence in South Dakota, where the sentencing guidelines were 1st offense, 6 points, 0 - 6 months. I had no suspended sentence, just probation.

Now I'm being accused of a violation by committing bank fraud. I have never been questioned, arrested or convicted of this charge, but my PO is sending the report using the guidelines for bank fraud, a 0-1 offense, 12-18 months incarceration.

My court appointed attorney says that they're not going to try to convict me of bank fraud because its a lot easier to convict me of probation violation because they only need a preponderence of the evidence, and that they can sentence me to this crime that they're claiming I did without proving it (just proving a parole violation) and recommends that I plead guilty to reduce the points.

Now, from what I understand, if convicted of probation violation, I can only be sentenced to 0 - 6 months, as was the range of my original violation, and not any longer then the maximum possible sentence I could have gotten originally. They would need to bring me up on formal charges of bank fraud where I
would have to be found guilty in a jury trial if they wanted to incarcerate me for that crime.

My question is two-fold:

1. Can they find me guilty of a probation violation for a crime that I haven't been convicted of?

2. Can I be sentenced for a parole violation on the scale of what they accuse me of doing, even though its not been, and will not have been, proven by a jury trial by the time i'm sentenced that I did it?




You have an attorney. Why are you asking a bunch of random strangers questions you should be asking her? What makes you think we know federal criminal probation laws better than she? However:

1. Yes
2. I think they have to sentence you to 0-6 months, but I'm not sure.

This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

[This message has been edited by Tracey (edited July 28, 2000).]


I'm asking because my attorney has never had to defend someone in a probation violation and I don't really feel confidant in their abilities, but it's a public defender and I need a reason to ask for a different one. If If I find out through research on my own that they're incompetant, then I'm going to ask for a different lawyer.

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