The recent case of former Dallas Cowboy Josh Brent has generated a lot of discussion. Most of the discussion has focused on whether probation is appropriate in a case where a death occurred. Many have also wondered how the judge could sentence him to 180 days in jail when the jury gave him probation.
To understand the answer, you need to understand how probation works. Probation - (or community supervision) is nothing more than a suspended sentenced. You are sentenced to a term in prison or the county jail, and that sentence is suspended. Instead of going to prison or jail you are placed under supervision. If you violate the conditions of supervision then your probation can be revoked and the sentence can be imposed. In Brent's case the jury sentenced him to 10 years in prison, so if he violates probation he can go to prison for 10 years.
Once you are released on probation, you are under the supervision of the probation department. The probation department basically works for, and reports to the judge. The judge is the person who ultimately decides whether you have complied with the conditions of probation, and if not, what sentence to impose. In addition to adjudicating violations, the judge also has the authority to impose the conditions of supervision. Most of those conditions are fairly standard, such as staying out of trouble, reporting regularly, and working or going to school. Some conditions are tailored to the type of offense; for example, anger management classes are often required in assault cases. The judge can also order you to receive treatment, such as drug or alcohol counseling.
One of the conditions of probation a judge can impose is time in jail. On the surface that doesn't appear to make a lot of sense since your sentence is being suspended. However, the theory is that some time in jail is necessary to make sure the person realizes how serious the case is. The maximum amount of time the judge can impose is 180 days, which is what was assessed in Brent's case.
There are two important aspects of time imposed as a condition of supervision. The first is that it is day for day - so if you are ordered to serve 30 days, you will spend the whole 30 days in jail. The other aspect is that you do not receive credit for the time in the event your probation is eventually revoked. Since it's not part of the sentence but is a condition of probation, you are not entitled to credit against any sentence that may be imposed.
You might wonder whether this applies to plea bargains, and it does. Most plea offers involving probation recommend that probation is granted, and may even recommend specific terms of probation such as attending certain classes. However, the judge is not limited to those, and can impose any condition he/she believes appropriate. More than a few defendants have been surprised by having to go to jail, instead of directly to the probation department after sentencing.
Most people think that if they receive probation they will walk out of the courtroom and start their probation. As you can see, that is not always the case. Fortunately, lawyers who regularly appear before a certain judge generally know the type of cases where jail time may be imposed and will discuss that with you.