Adult Probation: Terms, Conditions and Revocation

Transcription

1 Adult Probation: Terms, Conditions and Revocation Mandatory Conditions of Community Supervision Restitution Mandatory that it be pronounced at sentencing Sauceda v. State, 309 S.W. 3 rd 767 (Amarillo Ct of Appeals, 2010) pdr ref. Can t put to be determined by APO in order without re sentencing *Also, can order restitution in non probation case Mandatory Conditions Family violence assault conviction requires $100 payment to family violence center (Sec 11 h) DWI probationers 72 hours 30 days confinement Mandatory evaluation for drug or alcohol dependency and DWI schools Breath interlock for 2 nd and subsequent offenders, under 21, and breath test.15 or more Driver s license suspension

2 Permissive Conditions of Community Supervision may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant Not participate in any game of chance, including lottery tickets Disclose any social media account and give APO full access Successfully complete English As a Second Language course Make payments Permissive Conditions Crime Stoppers (not to exceed $50.00) State victims crime fund (not to exceed $50 for misdemeanor and $100 for felony) Reimburse arresting agency for drug testing, storage, disposal Permissive Conditions Reimburse county for court appointed attorney fees and interpreter fees Costs of victim s counseling One payment not to exceed $50 to children s advocacy center NONE other unless it related personally to rehabilitation of defendant

3 Motions to Revoke and Motions to Modify Jurisdictional Requirements Only the court that granted community supervision or the court to which jurisdiction has been transferred may revoke community supervision [C.C.P. Art (a)] motion to revoke must be filed and the warrant or capias issued before the end of the community supervision Defendant's Due Process Rights 1. Written notice of claimed violations 2. Disclosure to defendant of evidence of each alleged violation (Morton Act) 3. Opportunity to be heard and present witnesses and documentary evidence 4. Opportunity to confront and cross examine adverse witnesses

4 Due Process, cont. 5. A neutral and detached hearing body 6. A written statement by the fact finder of the evidence relied on and the reasons for revoking community supervision 7. The right to counsel(ex Parte Martin Shivers, 501 S.W. 2 nd 898 Tex. Crim. App. 1973) Arrest and Bail The court may issue a warrant for the defendant's arrest for violating any of the conditions of community supervision at any time during the period of community supervision. However, the defendant may be arrested with or without a warrant by any supervision officer, police officer, or other officer with power of arrest on the order of the judge [C.C.P. Art (b)] Can you deny bail on MTR? A defendant who has been arrested for violating a condition of community supervision may be released on bail or detained until a community supervision revocation hearing is conducted [see C.C.P. Art (b)] Must hold hearing within 20 days if defendant is incarcerated and files motion

5 New Provision (b 1) Without any unnecessary delay, but not later than 48 hours after the person is arrested, the arresting officer or the person with custody of the arrested person shall take the arrested person before the judge who ordered the arrest for the alleged violation of a condition of community supervision or, if the judge is unavailable, before a magistrate of the county in which the person was arrested. The judge or magistrate shall perform all appropriate duties and may exercise all appropriate powers as provided by Article with respect to an arrest for a new criminal offense, except that only the judge who ordered the arrest for the alleged violation may authorize the person's release on bail. (b 2) If the defendant has not been released on bail as permitted under Subsection (b 1), on motion by the defendant the judge who ordered the arrest for the alleged violation of a condition of community supervision shall cause the defendant to be brought before the judge for a hearing on the alleged violation within 20 days of filing of said motion Continuation or Modification After determining that the defendant violated a condition of community supervision, the judge may impose any other conditions the judge determines are appropriate Lengthen period of community supervision (up to three years) Impose additional fine Community service, alcohol and/or drug treatment, etc.

6 New Case Mathis v. State 424 S.W.3 rd 89 Court must consider Defendant s ability to pay before imposing requirement to have SCRAM device and pay for it. Modification Sec. 10. Authority to Impose, Modify, or Revoke Community Supervision. (a) Only the court in which the defendant was tried may grant community supervision, impose conditions, revoke the community supervision, or discharge the defendant, unless the judge has transferred jurisdiction of the case to another court with the latter's consent. Except as provided by Subsection (d) of this section, only the judge may alter conditions of community supervision. What procedure must you follow to modify conditions? Must the defendant consent to the amended condition in writing? Must the defendant be present in open court and on the record? If defendant does not consent, must you conduct a hearing, take testimony, appoint counsel?

7 Sanchez v. State, 603 S.W. 2nd 869 (Tex. Crim. App. 1980) We cannot agree that such modifications without a hearing violate due process of law. The terms imposed upon the appellant could have been included in the original probation conditions. Art , Sec. 6. The terms were not unreasonable. Nor does the appellant contend that he was not given notice of the changes in the terms of his probation. Appellant was not entitled to a hearing concerning the modification of his probation for the trial court "may, at any time, during the period of probation alter or modify the conditions." Art , Sec. 6. Defenses Probation condition was vague and ambiguous (restitution) Probation condition was unreasonable (forbidding change of marital status without permission) Failure to report PO made no attempt to contact D at last known residence or place of employment CCP (5)(g) Failure to pay fines, court costs, restitution (determination of indigency) Failure to pay fines, court costs, restitution Hardison v. Sate, 450 S.W. 2 nd 638 (Tex. Crim. App. 1970) State has burden Subsequently, State passed CCP 42.12, Section 8(c) making it an affirmative defense Current law: CCP Sec. 21 (c) state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay

8 Minimum Due Process Standards Apply Right to counsel applies throughout hearing(ex parte Guzmán revs d for not allowing counsel final argument) Defendant entitled to hearing on motion to revoke unless waived under C.C.P Sec 21 (b) Confined in penal institution and written waiver of right to hearing Possible Outcomes Continue the hearing itself Allow State to make recommendation in return for defendant s plea of "true Hear evidence and find that State did not prove violation, or defendant carried burden of proof on defense (preponderance) Hear evidence and find one or more allegations "true" and revoke in full or modify sentence Extend and/or Modify Possible sanctions when extending or modifying increase probationary term (not to exceed 3 yrs) written report increase reporting increase urinalysis/breath testing increase fine

9 Amended Conditions Cont. drug/alcohol education anger management curfew 12 step group intensive caseload jail time community service Revocation of Deferred Adjudication If revoked, proceed to find defendant guilty Assess punishment and sentence, or probate sentence and convert to regular probation THE END Questions? Garry Merritt Real County Judge (830)