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Massachusetts District Court Rules for Probation Violation Proceedings Rule 3: Commencement of Violation Proceedings: Charged Criminal Conduct

[Disclaimer]

(a) General. This rule prescribes the procedures to be undertaken upon the issuance of a criminal complaint against a probationer.

(b) Where Probation Order and Criminal Charge Involve Same Court

(i) Issuance and Service of Notice. When a criminal complaint is issued by a court against a defendant who is the subject of a probation order previously issued by that same court, the Probation Department shall commence violation proceedings against that probationer. Such proceedings shall be commenced by the issuance by the Probation Department of a Notice of Probation Violation and Hearing at or before the arraignment on the criminal charge. Said notice shall be served on the defendant in hand at arraignment following the assignment of a date and time for a probation violation hearing, as provided in section (b)(ii), below, and such service shall be recorded on the case docket, provided that if such in-hand service is not possible, the Notice shall be served on the probationer by first-class mail, unless the court orders otherwise. Service of the Notice by first-class mail shall be recorded on the case docket. Out-of-court service other than by mail shall require a written return of service. A copy of each Notice of Probation Violation and Hearing shall be provided to the District Attorney forthwith upon its issuance.

The court, upon review of the Notice at arraignment and as a matter of its discretion, may order no further proceedings in the matter, and in such cases formal service of the Notice on the probationer shall not be required.

(ii) Contents of Notice. The Notice of Probation Violation and Hearing shall set forth the criminal behavior alleged to have been committed by the probationer as indicated in the criminal complaint, and shall set forth any other specific conditions of the probation order that the Probation Department alleges have been violated with a description of each such alleged violation. Said Notice shall also state the date, time and place of the hearing.

(iii) Scheduling of Hearing. The probation violation hearing shall be scheduled to be conducted on the date of the pretrial hearing for the criminal charge, unless the court expressly orders an earlier hearing. The hearing shall be scheduled for a date certain no less than seven days after service on the probationer of the Notice of Violation and Hearing unless the probationer waives said seven-day notice period. Except in extraordinary circumstances, said hearing date shall not be later than 30 days after service of the Notice of Violation and Hearing if the probationer objects thereto. In scheduling the pretrial hearing on the new criminal charge together with the probation violation hearing, the court shall give primary consideration to the need for promptness in conducting the probation violation hearing.

(c) Where Probation Order and Criminal Charge Involve Different Courts

(i) Issuance and Service of Notice. When a criminal complaint is issued by a court against a defendant who is the subject of a probation order issued by a different court, the Probation Department at the court that issued the criminal complaint shall issue a Notice of Probation Violation and Hearing to the probationer at or before arraignment on the criminal charge. Said notice shall be served on the defendant in hand at arraignment and such service shall be recorded on the case docket. The Probation Department forthwith shall send a copy of said Notice, indicating such in-hand service, to the Probation Department of the court that issued the probation order, together with a copy of the complaint and police report on the criminal charge that constitutes the alleged probation violation. Nothing in this rule shall preclude the issuance and service on the probationer of a Notice of Probation Violation and Hearing by the Probation Department of the court that issued the probation order.

(ii) Contents of Notice. The Notice of Probation Violation and Hearing issued to and served on the probationer at the court that issued the criminal complaint shall set forth the criminal behavior alleged to have been committed by the probationer as indicated in the criminal complaint and shall order the probationer to appear at a specific date and time at the court that issued the probation order for the express purpose of appointment of counsel, if necessary, and scheduling of a probation violation hearing.

(iii) Scheduling of Hearing; Service by Probation Court. Upon appearance of the probationer at the court that issued the probation order in accordance with the Notice served pursuant to subsection (ii), that court shall appoint counsel, if necessary, and schedule a probation violation hearing for a date certain, said date to be no less than seven days later unless the defendant waives said seven-day period. Except in extraordinary circumstances, said hearing date shall not be later than 30 days after said appearance if the probationer objects thereto. The Probation Department may revise the Notice of Probation Violation and Hearing by adding to it any additional alleged violations. Such additional allegations shall set forth the specific conditions of the probation order alleged to have been violated with a description of each such alleged violation. The Notice, with or without amendment, shall include the date, time and place of the hearing, and shall be served on the probationer in hand while the defendant is before the court. Such service shall be recorded on the case docket. A copy of the Notice shall be provided to the District Attorney at the time of, or before, such service on the probationer.

The court, upon review of the Notice at the outset of the hearing and as a matter of its discretion, may order no further proceedings in the matter, and in such cases no hearing shall be scheduled nor further Notice served.

Added December 2, 1999, effective January 3, 2000.

Commentary. This rule sets forth procedures for a specific circumstance, namely, where a probationer is charged with a crime by the issuance of a criminal complaint. It is based on the premise that when a formal criminal charge is issued against a person on probation, this constitutes a basis for an alleged violation of the first general condition of every probation order (that the probationer must obey all local, state and federal laws) and the court must address such an alleged violation.

Note that it makes no difference whether the criminal complaint was issued after an arrest, or after a hearing on a criminal complaint application with no arrest having occurred. Note also that the rule does not apply to alleged criminal conduct that has not yet resulted in a criminal complaint. Probation violation proceedings based on alleged criminal conduct where no criminal complaint has yet issued are governed by Rule 4.

Commencement of Proceedings in Every Case

The rule requires the commencement of a probation violation proceeding in every case where a criminal complaint is issued against a probationer. No attempt is made to discriminate between those criminal charges that are "serious enough" to warrant violation proceedings and those that are not. The charge of a crime against a person who has been given the benefit of probation is serious enough per se to require action by the Probation Department. If the violation is found to have occurred, it is important to document that finding. The seriousness of the violation is properly addressed by the court's dispositional discretion, which is extremely flexible: a serious violation may result in revocation; a minor violation may result in simply a warning. See Rule 7(d). Nor must an alleged minor violation require protracted proceedings. In appropriate cases, the defendant may admit to the probation violation resulting in a simple continuance of the current probation terms and consent to a disposition at arraignment on the new charge. Of course, a defendant's rights to oppose any alleged violation and to demand trial on any criminal charge remain inviolate.

Whenever a new crime is charged, commencement of probation violation proceedings may not be delayed solely to await the conclusion of the new criminal case. Rules 5(e) and 7(a) similarly preclude such "tracking" of the new criminal case as a basis for delaying the conduct and conclusion of probation violation proceedings. The commentary to Rule 5(e) provides the rationale for the requirement. Continuances are available on specific grounds under Rule 5(e).

Where the court "treats" a criminal charge as a civil infraction, as provided by G.L. c. 277, s. 70C, the rule requiring the initiation of probation proceedings does not apply since the criminal charge, as such, can be considered no longer to exist. However, the underlying alleged behavior may constitute a violation of probation subject to possible violation proceedings under Rule 4.

Judicial Discretion to Terminate Proceedings After Commencement

It should be noted that the rule acknowledges the court's discretion to terminate a proceeding once it has been commenced. That is, the rule provides that proceedings are commenced "by the issuance by the Probation Department of a Notice of Probation Violation and Hearing at or before arraignment on the criminal charge." Usually such "issuance" will consist of the probation officer tendering the notice form to the court before the arraignment begins. (The notice will not be formally served on the probationer until and unless a hearing date is determined and recorded on the form.) At that time the judge is free as a matter of discretion to order that the proceedings be terminated. Such an order must be entered on the probation record and on the docket of the case in which probation was ordered to ensure accountability. While alleged probation violations based on new criminal charges, even minor ones, generally should proceed to a factual conclusion to vindicate the credibility of probation and to establish a proper record, there may be circumstances where, in the opinion of the court, the violation proceedings should be terminated at the outset.

Where the court at which the probationer is on probation is different from the court where the new criminal charge is brought, the judicial authority to order no further proceedings resides at the former court, and section (c) (iii) so states.

Same Court

There are two different circumstances in which proceedings under the rule can arise: where the criminal complaint is issued (1) by the same court that issued the probation order, or (2) by a different court. These situations are addressed separately in sections (b) and (c).

Section (b), the "same court" circumstance, requires the probationer to be served in hand with the Notice of Probation Violation and Hearing when he or she appears before the court for arraignment whenever possible. This requires administrative attention by the Probation Department at each court so as to ensure each day that all new arrestees and others appearing for arraignment are screened for probation status. Notices for all those who are on probation must be prepared for in-court service. Where necessary, these defendants can be scheduled last for arraignment to ensure preparation of the Notice and in-hand service. The issuance of the Notice constitutes "commencement" of action by the Probation Department. The prepared Notice should include any other violations that can properly be alleged in addition to the charged criminal conduct. For example, a probationer charged with a new crime may also have a history of failure to report as ordered. The date, time and place of the violation hearing should be left blank, to be recorded on the form when the hearing is scheduled along with the pretrial hearing on the criminal charge, as required in section (b)(iii). After this information is added, the Notice is to be served in hand on the probationer.

If the probationer defaults at arraignment, the Notice can be prepared and left in the case file.

When the court fails to make in-hand service at arraignment, the rule provides for other methods of service. In such cases, the goal should be to schedule the hearing on the same date as the pretrial hearing on the criminal charge, assuming this will not violate the seven-day minimum notice requirement.

There is no requirement that counsel in the original criminal case represent the probationer at the violation hearing. On the contrary, if appointment of counsel is required, it is appropriate to appoint the same attorney for the violation hearing and for the new criminal charge that also constitutes the alleged probation violation.

Different Courts

Section (c) of the rule addresses the circumstance where a person against whom a criminal complaint has issued is on probation in a different court. Under section (c)(i) the Probation Department of the court that issued the complaint must prepare and serve a Notice of Probation Violation and Hearing on the probationer in hand at arraignment, just as in the "same-court" situation. However, in addition to specifying the alleged violation, the Notice will order the probationer to appear on a date certain at the court where he or she is on probation. The purposes of that appearance will be to appoint counsel and schedule the violation hearing. The Probation Department of the court where the defendant is on probation may amend the notice to include additional violation allegations. Presumably the court where the probationer is on probation will schedule a prompt hearing date, consistent with the seven-day minimum notice period for the probationer. (See below.).

The requirement that copies of the Notice, criminal complaint and police report be sent "forthwith" to the probation court is most effectively satisfied by the use of facsimile ("fax") transmission.

Scheduling

Notice of the probation violation hearing "must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded." Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674, 676 (1986), quoting In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446 (1967). The rule provides a minimum of seven days notice in both the same-court and different-court situations. This is the minimum notice period previously provided by regulations of the Office of the Commissioner of Probation and should be minimally adequate in most cases given the narrow focus of these hearings. If either party desires more time than is allowed by the scheduled date, a continuance may be sought under Rule 5(e).

The rule also provides that the hearing may not be scheduled for a date more than 30 days after service of the Notice if the probationer objects to such date. This is to protect the probationer from undue delay, which is a particular concern if the probationer is being held in probation detention. Finally, the rule provides that even if the hearing date is beyond the 30-day limit and the probationer objects, such delay may nonetheless be justified on the basis of "extraordinary circumstances.".

The purpose of requiring the probation violation hearing to be scheduled along with the pretrial hearing on the new criminal case in the same-court situation (section (b)(iii)) is not only to avoid delay of the probation hearing, but also to create an opportunity for a disposition of the criminal case that takes into account the probation disposition. Most criminal cases, in fact, are disposed of by plea or admission. It is appropriate to provide the defendant an opportunity to consider whether to submit a plea or admission that may take into account the outcome of the probation violation hearing. The defendant's right to a trial on the new criminal charge remains unaffected.

The last sentence of section (b)(iii) is intended to indicate that the prompt scheduling of the probation violation hearing should drive the scheduling of the pretrial hearing on the new charge. Thus, in a court in which the next regularly available date for a pretrial hearing is not consistent with the need for a prompt hearing on the alleged probation violation in terms of public safety implications, a prompt date (even a minimum seven-day date where appropriate) should be given even if this means scheduling the pretrial hearing on the new criminal charge prior to the date it would otherwise receive.

In the different-court situation, the date of the Pretrial Hearing on the criminal charge should be indicated on the copy of the Notice sent to the probation court. This will allow the probation court to schedule the violation hearing before that date.

Under G.L. c. 258B, s. 3(o), victims have a right to be notified by a probationer's supervising probation officer if a probationer "seeks to modify a restitution order." This does not appear to require a supervising probation officer to send a copy of the Notice of Probation Violation and Hearing to a victim, even if modification of a restitution order is a possible outcome of the hearing.

Notice to District Attorney

In both the same-court and the different-court situations, the rule requires that a copy of the Notice of Probation Violation and Hearing be provided to the District Attorney. The relevant law, G.L. c. 279, s. 3, gives the District Attorney the right to receive a copy of the notice and appear at such hearings only where the original conviction for which the probationer is on probation involves at least one felony. However, the rule reflects the position that the District Attorney should be allowed to appear at all such hearings. It allows the District Attorney to decide which hearings to attend and provides as an alternative the submission of a written statement. (Rule 5(f)) This is appropriate, given the fact that some misdemeanor charges may have greater public safety implications than felony charges, e.g., drunk driving, domestic assault and battery and violation of restraining orders. Also, the District Attorney has certain obligations to victims of crime regarding probation violation hearings that can be met only if the District Attorney is informed of the scheduling of such hearings. G.L. c. 258B, s. 3. See Rule 5(f) and related commentary.