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Massachusetts District Court Rules for Probation Violation Proceedings Rule 4: Commencement of Violation Proceedings: Violations Other Than Charged Criminal Conduct

[Disclaimer]

(a) General. This rule prescribes the procedures to be undertaken regarding alleged violations of probation that do not involve or include criminal conduct charged in a criminal complaint.

(b) Issuance and Service of Notice. When a probation officer of a court that has issued a probation order determines that a probationer has violated any condition of that order other than the alleged commission of a crime as charged in a criminal complaint, that probation officer shall decide whether to commence probation violation proceedings. Such decision shall be made in accordance with the rules and regulations of the Office of the Commissioner of Probation, provided, however, that probation violation proceedings shall be commenced (1) upon the issuance of an indictment, (2) when the judge issuing the probation order orders that such proceedings are to be commenced upon an alleged violation of one or more conditions of probation, or (3) when the commencement of such proceedings is required by statutory mandate. In any case, a judge of the court may order the commencement of violation proceedings.

The Notice of Probation Violation and Hearing shall be served on the probationer in hand or by first-class mail, unless the court orders otherwise. Service of the Notice in hand or by first-class mail shall be noted in the court record. Out-of-court service other than by first-class 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.

(c) Contents of Notice. The Notice of Probation Violation and Hearing shall set forth the conditions of the probation order that the Probation Department alleges have been violated and shall order the probationer to appear at a specific date and time for the express purpose of the appointment of counsel, if necessary, and the scheduling of a probation violation hearing.

(d) Scheduling of Hearing. Upon appearance of the probationer in accordance with the Notice required by section (c), the 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 probationer waives said seven-day notice period. Except in extraordinary circumstances, said hearing date shall not be later than 30 days after said appearance if the probationer objects thereto.

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

Commentary. This rule provides the procedures to be followed when it is alleged that a probationer has violated any probation conditions that do not include criminal behavior as alleged in a criminal complaint, that is, any violation not governed by Rule 3. This includes allegations of criminal acts that are not the subject of a criminal complaint, allegations of a crime set forth in an indictment, any alleged violation of general probation conditions 2 (to report to the probation officer as required), 3 (to notify the probation officer of any change of employment or address) or 4 (to obtain permission to leave the Commonwealth), and any alleged violation of any special condition of probation.

Section (b) of the rule defers to the Rules and Regulations of the Office of the Commissioner of Probation (OCP) regarding the commencement of such proceedings. Unlike charged criminal acts, it is appropriate that other alleged violations be the subject of violation proceedings only in accordance with professional probation policies and standards. These policies provide an appropriate degree of discretion and also provide a procedure for administrative proceedings where the alleged violation does not warrant the commencement of court proceedings. Such policies require collaboration with the Presiding Justice at each court. Notwithstanding a probation officer's decision, in accordance with Probation Department regulations, not to commence proceedings in a particular case, a judge may order such proceedings to be commenced.

There are three exceptions to the reliance on OCP regulations and policies under section (b). The first requires commencement of proceedings upon the issuance of an indictment. The rationale for this is the same as for the required commencement of proceedings upon the issuance of a criminal complaint. See commentary to Rule 3. The second allows the sentencing judge to require in the probation order that upon certain alleged violations, a probation violation hearing must be commenced. The third exception is that a violation hearing must be commenced if required by law. Perhaps the most notable example of the last is G.L. c. 209A, s. 7, which provides as follows:

"If the defendant ordered to undergo treatment [after being convicted of a violation of a restraining order issued under G.L. c. 209A] has received a suspended sentence, the original sentence shall be reimposed if the defendant fails to participate in said program as required by the terms of his probation".

The statute would appear to require that probation violation proceedings be commenced upon an allegation of such a violation, and that revocation be ordered if the violation is found.

The rationale for providing a copy of each Notice of Probation Violation and Hearing to the District Attorney is the same as for notices in proceedings under Rule 3. It allows the District Attorney to decide which hearings to appear at and permits the District Attorney to fulfill certain legal obligations to victims and witnesses involved in the original criminal case in which the probation order was issued. See Rule 5(f) and related commentary.

Sections (c) and (d) provide for notice to the probationer of the alleged violation and ordering him or her to appear in court on a specific date and time so that the issue of counsel may be addressed and the violation hearing scheduled. The minimum notice period for the hearing is seven days, unless waived.

In cases where custody of a probationer is warranted pending the hearing, the probationer may be arrested with or without a warrant pursuant to G.L. c. 279, s. 3, and held if probable cause is found at a preliminary violation hearing following the arrest. See Rule 8.