I was convicted of assault a 4th degree felony. My girlfriend is the victim. I served 6 months in a treatment center. I have 4 more years of probation. I have already had a probation violation for contact with her. She is willing to do whatever is nessesary to remove the protection order. What steps do we have to take to accomplish this? Can she appeal to my p.o. or should she approach the judge? Thank you very much.
Dear ?,
There are no steps she can take.
First of all, the judge has no power to act on anything presented to him/her off the record and if he/she did so act he/she would be in violation of basic Due Process law. Because, secondly, the district attorney's office, as the representative of the State has the right to present its opinion on the issue in court and if you don't understand by now that there is no way the district attorney will ever approve of changing the conditions of your probation as things stand now, then you need to get a clue about the process.
Similarly, the p.o., who COULD make a favorable recommendation to the judge, if a motion to modify condiitions were filed, is not about to do that based on anything your gf says since your p.o is all too familiar with battered women's syndrome (as we all are in the criminal defense business) the worst symptom of which is the female victim blames herself for attacks by her lover. Or, your p.o. may well believe you put her up to it with persuasion or threats.
No, the only person who has any kind of a chance at all, and even then it is a very, very slim one, of getting your conditions modified is you. You have to show measurable progress toward the rehabilitative goals set by your p.o. And the fact that AFTER you spent your 6 months in treatment you then had a probation violation tells the p.o. that you are heading in the wrong direction. You are going to have to change the p.o.'s opinion of you and that can only be done by following, to the letter, every single condition of your probation. And the fact you somehow know your gf " is willing to do whatever is necessary" probably means you have again violated the no contact order.
Look, this is not a game where you try to get away with as much as you can and see if the authorities catch you. Every time you break your rules, you can be sent to jail if the violation is discovered. You cannot win this game unless you obey your rules. So, I have a final piece of advice. If you have been required to take anger management classes as a condition of your probation, then do so and try as hard as you can to get a good grade or however they measure progress there. If you have not been required to take such classes, then volunteer to do so, even if it means you have to pay for them yourself. If you cannot show measurable progress on your probation goals, you have no chance of ever getting the modification you want.
Yours sincerely,
Tim Provis
Cal. Bar No. 104800
Wis. Bar No. 1020123
Member: U.S. Supreme Court Bar
I suggest you have your attorney file a motion to terminate the protection order and request a hearing. The attorney can then subpoena her to court and get her to testify that she no longer wants the protection order and why. This does not mean the court has to grant this motion but at least it is a shot. I agree with the previous attorney if you violate the protection order not only can you be revoked and sent to prison on the previous charge they could file new charges of violating a protection order which can eventually become a felony. Most judges are hard on protection order violators because they feel it is you thumbing your nose at the court. Use an attorney and file the motion. Good luck.
