Probation Caselaw Guide
by: Abassos • April 28, 2011 • no comments
What follows is Scott Sharp's summary of all the caselaw relevant to probation hearings as of late 2010. For more recent cases and blog posts, you can go to the probation page of this website.
Right to an Attorney
Perry v. Willard, 247 OR 145 (1967)
Court must advise pro se defendant of the risks of proceeding without an attorney at probation violation hearing. State v. McCullough, 178 Or App 411 (2001); State v. Goss, 175 Or App 476 (2001).
Jurisdiction of the Court
Checking the box on the judgment for probation is sufficient to give the court jurisdiction to revoke a suspended imposition of sentence. State v. Bush, 112 Or App 368 (1992).
The Trial Court maintains jurisdiction anytime during the probation period. ORS 137.550(2)
State v. Danny Joe Miller (Court of Appeals, December 24, 2008)
The Court of Appeals explained: "If a circuit court commences a [probation] revocation proceeding during a defendant's period of probation, through a show cause order or a bench warrant, the court retains jurisdiction over the defendant even after probation ends. Put another way, a court lacks authority to revoke probation for an action that a petitioner committed during the probationary period when revocation proceedings have not been initiated before the probationary period has expired." Defendant's probation expired on November 8, 2005. On November 15, the court issued a bench warrant that was served on defendant on November 22. Following a hearing, the court revoked defendant's probation on December 9, and imposed a term of 16 months' incarceration Sentencing 2 January 1, 2009 and three years' post-prison supervision. The Court of Appeals concluded that "the revocation proceedings began after defendant's term of probation ended. * * * Therefore, the court lacked authority to revoke defendant's probation."
Without more, a defendant who FTA's one appointment with a P.O. has not "absconded" from the courts jurisdiction for purposes of ORAP 8.05(3). State v. Robbins, __ Or __ (July 3, 2008).
A current probation is not a pending charge for purposes of Enhancement factors. State v. Boitz, __ OA __ (July 28, 2010).
State v. Lindquist,192 Or App 498 (2004), no speedy trial right on p/v?
Timing of the Warrant
Where the warrant issued prior to the expiration of probation, the court has jurisdiction to extend an order on defendant's probation. State v. Stuve, 111 Or App 1978 (1992).
A warrant tolls the probation end date. ORS 131.005(2); ORS 137.060; State v. Vaughn, 105 Or App 518 (1991).
A 1998 warrant for a probation violation with 2002 service is not an initiation of prosecution for purposes of ORS 131.135. Thus there is no unreasonable delay. State v. Lindquist, 192 Or App 498 (2004); State v. Dunn, 123 Or App 288 (1993).
Original Imposition of Probation
The Trial Court lacks authority to impose conditions of post prison. ORS 144.270(2).
Probation is not a sentence [unless you add a verb =)]. State v. Carmickle, 307 Or 1 (1987). (Overturned by Statute?)
Historically, one could accept or reject probation in total. State v. Carmickle, 307 Or 1 (1987). Now, that rule has been precluded by ORS 137.010(4). See, State v. Hollingsworth, 100 Or App 62 (1989).
The Maximum sentence is one ½ the maximum jail sentence if probation is imposed (misdemeanors). That includes suspended sentence time. ORS 137.540. See, State v. Foster, 186 OR App 466 (2003).
Conditions of Probation
The conditions must be for the protection of the public and/or the reformation of the offender. ORS 137.540(2). Conditions are not for the purpose of deterring others, nor as a substitute form of punishment. State v. Donovan, 307 Or 461 (1989).
The timing of the entry of the court's order does not matter, a condition takes effect immediately. State v. Quackenbush, 116 Or App 453 (1992).
Only the court can impose conditions infringing one's IV Amendment rights. (they cannot be imposed by the P.O.). State v. Stephens, 50 Or App 595 (1981); State v. Maag, 41 Or App 133 (1979)(otherwise one's right to appeal is affected).
A condition not to associate with convicted people must exclude a convicted spouse, unless such no contact is for public safety or defendant's rehabilitation. State v. Martin, 282 Or 583 (1978); see also, State v. Saxon, 131 Or App 662 (1994).
Banishment from a city is an excessive condition of probation. State v. Jacobs, 71 Or App 560 (1984).
Without more, a Defendant who FTAs one appointment with a PO has not "absconded" from the courts jurisdiction for purposes of ORAP 8.05(3). State v. Robbins, __ OR __ (July 3, 2008).
A condition of monitored computer use is permissible; a ban on computer use is not permissible. US v. Goddard (9th Cir. Aug 11, 2008).
Not to be more than 5 years except . ORS 137.010(3) the court may extend upon a finding that a defendant sentenced to probation for a felony has violated a condition of the probation and in lieu of revocation, the court may order the period of both the suspended sentence and the sentence of probation extend until a date not more than six years from the date of original imposition of sentence. ORS 137.010(4)
Monitoring Computer use is allowed. Banning Computer use is not allowed. US v. Goddard (Aug 11, 2008 9th Cir.)
Burden of Proof
By a preponderance (not BRD) is constitutionally adequate. State v. Fortier, 20 Or App 613 (1975)(A trial court may still revoke a probation even if a jury found defendant not guilty of the new charge.).
Suspended Sentence
A suspended sentence may be implemented without revoking the defendant (i.e, she may be continued and the suspended sentence implemented). State v. Kreitzer, 85 Or App 151 (1987).
Modification of Probation
A probation may be modified by the court without a finding of violation. ORS 137.540(4). State v. Stanford, 100 Or App 303 (1990).
Court extended defendant's probation as a means of avoiding a hearing on a stalking protective order. Although an SPO, if issued against a probationer, certainly reflects concerns about public safety, it is impermissible to extend probation in lieu of conducting an SPO hearing altogether unless the parties have so stipulated. Defendant clearly objected to any extension of her probation in lieu of a hearing. In fact, she was prepared with evidence to defend against the stalking allegations. It follows that the trial court's order constituted an abuse of discretion and that the order must be reversed. State v. Baker, ____Or. App. ___ (May 12, 2010)
Searches Pursuant to Probation
ORS 137.540(2)(m) does not literally authorize a search. The probationer has the choice of refusing to allow a search. Refusal comes at the threat of being written up. The Probation search requires that there be "reasonable grounds" for the search. State v. Gulley, 324 Or 57 (1996) and State v. Guzman, 164 Or App 90 (1999).
Requiring a probationer to submit to tests also requires "reasonable grounds". State v. Fromel, 115 Or App 384 (1992).
Evidentiary Rules at a Probation Hearing
A written motion to suppress is not required; it is sufficient to tell the court that you are contesting the evidence. State v. Nettles, 287 OR 131 (1979).
The Exclusionary Rule is to deter unconstitutional police conduct and safeguard the IV Amendment generally. Therefore it probably doesn't apply at revocation hearings. State v. Nettles, 287 OR 131 (1979).
Being on probation is not a "benefit" under OAR 333-24-310. State v. Tradewell, 108 Or App 628 (1992).
ORS 488.435 does not control admission of evidence in a probation hearing. State v. Tradewell, 108 Or App 628 (1992).
Marital Privilege applies to probation hearing. State v. Schier, 47 Or App 1075 (1980).
Confrontation clause of VI Amendment as applied through XIV Amendment. Crawford v. Washington, 124 S. Ct. at 1374 (2004) does not apply at p/v hearing: State v. Gonzalez, 212 Or App ___ (April 11, 2007)(Gonzalez holds that a p/v is not a criminal prosecution therefore Crawford doesn't apply, but US v. Comito, 177 F. 3rd 1166 (9th Cir. 1999) seems to hold otherwise; Gonzalez does not mention Comito.)(there's new case law on this )
Motion in limine at trial court not enough to preserve confrontation issue at P/v. State v. Willis (December 2006)
Same minimal due process requirements of parole revocation proceedings required at Probation Revocation hearings. Gagnon v. Scarpelli, 441 US 778 (1973)(citing Morrissey v. Brewer, 408 US 471 (1972)).
Oregon adopted the 9th Cir. Requires a balancing test for deciding weather HS comes in. State v. Johnson __ OA __ (July 30, 2008)This case, the Court of Appeals reasoned, "presents the opportunity to consider whether the Fourteenth Amendment, unlike the Sixth Amendment, proscribes the admission of hearsay evidence in a probation violation proceeding." The court noted: "Less process is due at a revocation hearing than during a criminal trial, and the trial court at a probation revocation hearing may consider documentary evidence that does not meet usual evidentiary requirements. * * * For example, the trial court in a revocation proceeding may consider, where appropriate, 'conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. In cases on direct appeal involving the right to confrontation under Morrissey, the Ninth Circuit employs 'a process of balancing the probationer's right to confrontation against the Government's good cause for denying it.'" The court announced: "[W]e apply the Ninth Circuit's balancing test to the record in this case to determine whether the admission of the challenged evidence violated defendant's due process right to confrontation. * * * Weighing against admission are the facts that the challenged evidence was important to the state's case, and the state made only a perfunctory showing as to why the probation officer did not appear to testify on two consecutive hearing days. The supervising officer's double hearsay testimony that defendant's probation officer was caught in traffic on the original hearing date and, without providing more detail, that he suffered from an unspecified illness on the second date did not furnish very compelling excuses for the probation officer's absences. However, the other factors militate strongly in favor of admitting the challenged evidence. First, the evidence bore several traditional earmarks of reliability. Not only was the evidence admissible under a well established exception to the hearsay rule, but it also was cabined in a sworn affidavit that subjected its author to penalty for false swearing. * * * Furthermore, * * * the facts were not complex; they were few and straightforward. * * * The facts underlying those issues did not involve matters of opinion, interpretation, or nuance; either they happened or they did not." Moreover, "and perhaps most important here, defendant had a full and fair opportunity to contest the challenged evidence, but he did not meaningfully do so.
Exclusionary rule applies to p/v proceeding: In re Rogers, 314 Or. 114
Revocation
Maximum sentence on revocation might be 180 days ORS 137.593(2)(d). See State v. Ferguson, 228 Or App 1 (2009).
In no case may the sentencing judge revoke probation after the probationer has completed a structured, intermediate sanction. ORS 137.593(2)(c); ORS 137.593(3).
There is no authority for the court to convert restitution to compensatory fines at the expiration of probation. State v. Prentice, 111 Or App 639 (1992).
The court may not revoke for failure to pay restitution unless, under the totality of the circumstances the purposes of probation are not being served. ORS 137.540(8).
The court may not revoke for non-contumacious failure to pay fines. State v. Fuller, 12 Or app 152 (1973). (Contumacious [kon-too-mey-shuh s]-adjective: stubbornly perverse or rebellious; willfully and obstinately disobedient. (www.dictionary.com)).
Where extradition did not occur prior to original conviction and sentence, it is error to impose extradition fees. State v. Flajole, 204 Or App 295 (2006).
Defendant may not be extended and revoked for the same violation. State v. Smith, 98 Or App 543 (1989).
The cutting the sentence in ½ rule (ORS 137.540) does not apply when defendant is revoked. Dicta in State v. Kreitzer, 85 Or App 151 (1987).
One must be on at least Post Prison Supervision to qualify for the treatment dorm. Per Craig Barnett and Bill Wolfard.
Not enough for judge to say purposes of probation are not being served even where fines are not being paid. Judge must elaborate why. State v. Kacin, __ Or App __ (Sept. 1, 2010).
Consecutive, Concurrent, and Consolidated Sentences
Maximum sentence on revocation might be 180 days ORS 137.593(2)(d). See State v. Ferguson, 228 Or App 1 (2009).
A probation court may impose consecutive sanctions on revocation of separate probations if a probationer commits multiple violations of probation. OAR 213-012-0040(2)(b). State v. Stokes, 133 Or App 355 (1995).
Nothing requires the consolidation of all pending probation violations in a single structural sanction report, and nothing precludes a trial court from separately imposing a sanction for a separate violation to which defendant does not admit and for which the defendant has not completed a structured, intermediate sanction. State v. Merton, 189 Or App 411 (2003).
OAR 213-012-0040(2) authorizes making revocation sanctions consecutive with other revocation sanctions. It does not authorize making them consecutive with sentences imposed on new crimes. Thus, revocation sanctions must be run concurrently with sentences for new crimes.
Fines and Fees
There is no authority for the court to convert restitution to compensatory fines at the expiration of probation. State v. Prentice, 111 Or App 639 (1992).
The court may not revoke for failure to pay restitution unless, under the totality of the circumstances the purposes of probation are not being served. ORS 137.540(9). State v. Kacin, __ Or App __ (Sept. 1, 2010).
The court may not revoke for non-contumacious failure to pay fines. State v. Fuller, 12 Or app 152 (1973). (Contumacious [kon-too-mey-shuh s]-adjective: stubbornly perverse or rebellious; willfully and obstinately disobedient. (www.dictionary.com)).
Where extradition did not occur prior to original conviction and sentence, it is error to impose extradition fees. State v. Flajole, 204 Or App 295 (2006).
Double Jeopardy
A probation is not a criminal prosecution; thus a person can be revoked for a new crime and prosecuted for the same. State v. Maricich, 101 Or App 212 (1990).
Collateral Estoppel applies to probation violation hearings. State v. Bradley, 51 Or App. 569 (1981).
