Changing Conditions of Informal or Formal Probation

For those supervised by county-level probation, below are the steps for requesting a change to your conditions of formal or informal probation.

Draft the Motion and Supporting Documents:

    There is no official court form for this motion. You may contact the Court Clerk in the local county superior court where you were convicted to ask if there is a local form for this purpose. Most likely there is not, so you or your attorney will have to draft an original motion. Your motion should consist of the following parts:[1142]

(1) Notice of Motion: This tells the court what you want it to do. In other words, it notifies the court that you want it to modify your probation conditions.[1143]

(2) Memorandum of Points and Authorities: This section explains the law or authority that you are relying on for your request, as well as the facts supporting your request under that law or authority.[1144]

In the case of a disability, you should include the following: Americans with Disabilities Act (ADA),[1145] California Government Code § 11135, Civil Code §§ 54 et seq., California Penal Code § 1203.3 and the specific facts of your disability, how it affects you on probation, and what changes or additional assistance you need.

(3) Declaration: This is your signed, sworn statement of the facts used in your memorandum. It must include all of the facts used to support your motion.[1146]

(4) Any Supporting Documentation: If you have any documentation, such as a doctor’s letter or prescription for medication, you should include these.

(5) Proposed Order: This is the document the judge signs to grant your motion and officially allow your probation to be terminated.

(6) Proof of Service: Include the Proof of Service form with your motion. This document must be included with all your court papers to prove that you gave a copy of the court papers to every person who is required by law to get them.

Need help with your court forms? Ask the attorney/ Public Defender from your case, the court’s Self-Help Center, or your local law library for assistance with your motion.

IMPORTANT: If you had public defender for your case, many Public Defender offices will write, file, and argue motions to modify probation on your behalf. Call you public defender to find out whether they are able to assist you in filing and arguing your motion.


File the Motion

    Once your motion is drafted, you should make at least 4 copies—an original copy for the court, one copy for the District Attorney, one for the Probation Department, and one for you to keep. The court clerk will keep the original copy for the court’s file.
    Bring the original motion and all copies to the clerk who will stamp all the documents with the date you are filing these documents. The clerk will give you back your copy, plus any copies that need to be served on the other parties. Remember to make sure that the clerk stamps each of these copies!
    Be sure to confirm with the clerk if the clerk’s office will serve the District Attorney and the Probation Department, or if you are responsible for doing that. If the clerk gives you back more than just your own copy, it most likely means that you are responsible for service! (See STEP 3 below).
    FEES/ COST: Be aware that there are always fees associated with filing documents with the court. These fees will vary by county, and you can request a fee waiver if you qualify. Check with the clerk for your county’s fee schedule and waiver request process. Note: if you had a public defender on your case, you also may be eligible to receive a fee waiver for court filing fees.

After your motion has been filed, the clerk will give you a court date to have your motion heard by the judge.

Serve the Motion on the Other Parties

    If the clerk indicates that you are responsible for “service,” this means that you must make sure that all necessary people (called necessary “parties”) get a copy of the motion in the proper manner.
    The law requires that you give the District Attorney at least 2 days’ notice of your motion (or 5 days if your case involves domestic violence).[1147] This means that the DA must have a copy of your motion at 2 two days before the date of your hearing. It is best to serve the motion on all necessary people (parties) right after you file it. Be sure to have the DA’s office stamp the copy of your motion that you are keeping for yourself too—this serves as your proof that you served the DA with your motion.

The Hearing

    When you file your motion, the clerk will give you a court date for your motion to be heard by a judge. You will have to attend the hearing if you are not being represented by an attorney. In most cases, even if you are being represented by an attorney, you will want to be present to show your respect to the judge and the court process. The judge is unlikely to modify your probation unless it thinks that you are taking your probation seriously—and going to your court date shows the judge that you care about your case![1148]
    If the judge grants your motion or modifies your probation conditions in any other way, he or she must state the reasons for doing so on the record.[1149]
  1. 1142

    Cal. Rules of Court, Rule 3.1112.

  2. 1143

    Cal. Rules of Court, Rule 3.1112.

  3. 1144

    Cal. Rules of Court, Rule 3.1113.

  4. 1145

    This law protects people with disabilities against discrimination and requires public entities to provide reasonable accommodations. The law applies to all public entities, including local courts and probation departments.

  5. 1146

    Cal. Rules of Court, Rule 3.1112.

  6. 1147

    Cal. Penal Code § 1203.3(b)(1).

  7. 1148

    If you are requesting a change in your probation conditions due to a disability: During the hearing, you (or your attorney, if you have one) will explain to the judge why your disability makes it difficult for you to comply with your current conditions, what changes you need in your probation conditions, and if you need any other assistance from the probation department to successfully complete your probation. You can also ask the court to order the probation department to provide certain assistance or other accommodations. The prosecutor will also have a chance to speak, including a chance to oppose your request for modification.

  8. 1149

    Cal. Penal Code § 1203.3(b)(1)(A).