Motion for Early Termination of Probation
To request early release from probation, you will need to file a Motion for Early Termination of Probation in the court where you were convicted. Because this process requires drafting a formal court pleading with accompanying documents, it is recommended that you ask a lawyer for help. Ideally, you should contact the lawyer who represented you when you were sentenced, but any private criminal defense lawyer or Public Defender should be able to help you.
Need help with your court forms?
Remember, it is recommended that you ask a lawyer to help you with your Motion for Early Termination of Probation. But if you cannot get a lawyer or want to do it on your own, you can find helpful information on the California Courts website:
- Cleaning up your record http://www.courts.ca.gov/1070.htmUnderstanding the basics of court forms http://www.courts.ca.gov/1078.htm
The process for filing a Motion for Early Termination of Probation is as follows:
Write your Motion and Supporting Documents.
There is no official court form for this motion, so you or your lawyer will have to write your own motion. Your motion will consist of these 5 parts:
- Notice of Motion—This tells the judge what you want to him or her to do. In other words, it tells the judge that you want to be released early from probation.
- Memorandum of Points and Authorities—This section explains the law (California Penal Code section 1203.3(a)), the facts about your individual situation, and the evidence you have to justify your request for early release.
- Declaration—This is your sworn statement that all the facts about your individual situation are true. Your Declaration must include ALL of the facts that you use to make your points in your Memorandum and all the information that you want to tell the judge to convince him or her to grant your request.
- Proposed Order—This is the document the judge signs if s/he grants your early discharge and terminates your probation.
- Proof of Service—You will need to give copies of your court papers to the other people involved in your case (generally the District Attorney and the probation department—ask the court clerk if there is anyone else). The Proof of Service proves that you gave copies to everyone who was supposed to get them.
Make Copies & File your Motion
- Once your motion and other papers are all ready, make copies for everyone who will receive it. Check with the court clerk to see how many copies you will need. Generally, you will need one copy for the DA, one for the Probation Department, and one for your own records, but you should ask the clerk if there is anyone else. You may also want to make a courtesy copy for the judge.
Be aware that the clerk will charge you fees for filing documents with the court. The amount of the fees will vary by county. If you cannot afford to pay the fees, you can request a fee waiver (meaning you do not have to pay the fees). Ask the clerk how much the fees are and how to request a fee waiver.
- Bring the original motion and all copies to file with the clerk in the court where you were convicted. The clerk will file your Motion, keep the original copy for the court file, and give you back the copies you need for yourself and the other parties (DA, probation department, etc.).
- After you file your motion, the clerk will give you a court date for a hearing before a judge. Ask the clerk what room your hearing will be in.
Serve your court papers on the other parties
- Service is the official process of giving copies of your court documents to other people connected with the case.
- Ask the court clerk whether you are responsible for serving your court papers, or whether the clerk will do it directly. If the clerk gives you back more than 1 copy when you file your court papers (see Step 3), this most likely means that you are responsible for service!
- If the clerk says that you are responsible for service, this means that you must make sure that all necessary parties (DA, probation department, and anyone else the clerk tells you) get a copy of your papers motion in the proper manner.
- If you are responsible for service, make sure to have your papers served on (delivered to) the DA at least 2 days before the court date for your hearing! The law requires you to give the DA at least 2 days notice of your Motion so he or she can prepare for the hearing as well.
Attend The Hearing
- When you file your Motion for Early Termination of Probation, the clerk will give you a court date for your motion to be heard by a judge. You MUST go to court for the hearing on that date and time!
- At the hearing, you will explain to the judge all the reasons why releasing you from probation early is “in the interests of justice”—in other words, why you deserve to be released early from probation, and why being off probation will help you to achieve your goals and avoid further hardships. You should talk about all of the factors discussed above, including (1) your successful fulfillment of your probation requirements and satisfaction of all conditions; (2) your good conduct, efforts at rehabilitation, and other accomplishments (work, school, volunteer efforts, family responsibilities, etc.); (3) what you have learned and how you have changed since your offense; and (4) why staying on probation will cause you hardship (for example, preventing you from finding work, attending school, traveling to see your family, etc.).
- If the judge grants you early release from probation or changes your probation in any other way, he or she must explain the reasons for doing so. Also, before the judge signs the Order to officially end your probation, s/he must first notify your probation officer.
Re-filing Your Motion
- Remember, a decision to terminate your probation early is entirely up to the judge to decide. However, if the judge denies your motion, you can re-file it. Make sure you find out why the judge denied your request so that you can fix the problem before you re-file. If there is something the judge wants you to include with your motion next time, make sure you include it. If there is something the judge wants you to do before he or she is willing to grant your request, make sure you do it!
- Finally, although there is no limit to how often or how many times you can re-file, do not be a nuisance! The last thing you want to do it put the decision in the hands of an annoyed judge!