Once conviction has been affirmed and review denied, how does the defendant begin sentence of probation? Does probation send out letter to begin or do you have to set a court date and have judge sign order?

The date the mandate is signed is the date that the defendant's probation must start. Probation often has the defendant contacted before and they can begin their classes so that they can get done, but before that mandate, you cannot revoke. The judge doesn't need to sign an order, and the appellate defense attorney will get a copy of the mandate, so the defendant should be expecting to hear from probation. Unfortunately, the actual mandates often come down months after the appeal is denied.

I've seen it go both ways--the defendant does aboslutely nothing until he has to, and I've seen defendants want to come in and get started once they know the appeal is lost.

The date that mandate is signed, the defendant is on probation and cannot play dumb as though they didn't know they had to be available to the probation department's calls.

Best practice is to have the defendant brought back into court and, in the presence of lawyers and judge, tell him his probation has officially begun as of the date of the mandate. Good idea also to look at the conditions of supervision and see if circumstances during the appeal require any modification. If there is jail time as a condition, that's a good time to put defendant in custody.

We always do a order after mandate. We have a hearing before the court and on the record.

I'm happy to send a sample over if you like.

I sent a couple orders over to you. Hope they help.

By what mechanism do you bring the person back to court without a probation violation?

What authority / jurisdiction does the trial judge have to order defendant to court and what is the recourse if he doesn't show?

There is no statutory provision which specifical-ly requires a hearing after the mandate issues in a probation case. However, as a practical matter, the defendant needs to be brought in and told that his probation has officially begun as of the date of the mandate. We also have a form to modify the previous judgment without changing the substance of any of the conditions contained in the original probation judgment. Without thus modifying the conditions involving dates to report, make payments, etc., the previous condi-tions referring to dates which have now passed will not be enforceable.

Also, in response to Ms. Jost's inquiry about the remedy if the defendant does not show up when ordered to appear, a standard condition of an appeal bond is that the defendant surrender himself for the sentence imposed to be carried out once the appeal is over. Thus, if he does not appear in court, he is in violation of said condition.

I surfed in looking for an answer to this very question. This was very helpful to me, and I want to thank all of you for your input.

My question is, I've spent most of the morning looking for the law regarding this in CCP 42.12 (community corrections) and 44.04 (Appeal and Writ of Error) and I can't find it. I need to be able to cite the exact law (or laws) that line this out.

Can anyone help?

There isn't anything in the CCP that specifically sets this out. Might be help in Rules of Appellate Procedure, dealing with mandate (Rule 18). But, most of us got this from trial and error combined with some case law.