TITLE FOUR — SENTENCING
Rule 28.2. Probation and Community Control
When Probation or Community Control May Be Used.
Authority. The court may determine the question of the probation of a defendant in a criminal case upon an adjudication of guilt, plea of guilty, or plea of nolo contendere. 6 R. Stat. § 131.613.
As an Alternative. Where authorised by the sentencing guidelines, the court may, in its discretion, impose a fine, probation, or community control upon a defendant as an alternative to prison. 6 R. Stat. § 131.615.
Split Sentence. The court may impose a split sentence whereby the defendant is to be placed on probation or community control upon completion of any specified period of such sentence. 6 R. Stat. § 131.616. The judgment shall state the period of imprisonment to be served and the period of supervision that follows it.
Community Control. Community control is supervision in the community upon conditions more restrictive than those of probation, imposed under 6 R. Stat. §§ 131.613 through 131.620. Except where these rules provide otherwise, the provisions of this rule apply alike to probation and to community control.
Notification to the Sheriff’s Office. The court shall provide notice to the sheriff’s office that a person has been granted probation or community control, the terms attached to the order, and the expiration of the order. 6 R. Stat. § 131.614. The Clerk shall transmit the notice within twenty-four (24) hours after the entry of the judgment and shall enter the transmission upon the docket.
The Order of Probation.
Form. Probation or community control shall be imposed by an order entered as part of the judgment. The order shall state each term and condition with sufficient particularity that compliance may be determined and a violation proved.
Statement in Open Court. The court shall state the terms and conditions upon the record in the presence of the defendant and shall determine that the defendant understands them. Where sentence is imposed in the defendant’s absence under Rule 18(j), the court shall state the terms upon the record in the presence of counsel; the clerk shall transmit the order as Rule 18.4(8) requires; the conditions take effect upon transmission or upon the defendant’s appearance as the court directs; and the court shall make the determination of understanding, and shall reconsider the conditions upon the motion of the defendant, when the defendant is next before it. No violation shall be found upon conduct occurring before the defendant received the terms.
Copy to the Defendant. The defendant shall be furnished a copy of the order at the time it is imposed. The Clerk shall record the delivery upon the docket.
Commencement. The order shall state the date and time at which the period of supervision begins and the date and time at which it expires.
Terms and Conditions.
Determination by the Court. The court shall determine the terms and conditions of probation. 6 R. Stat. § 131.617.
Enumerated Conditions. The conditions may include among them the following, that the probationer or offender in community control shall:
report to the probation officer as directed;
permit the probation officer to visit them at their home;
work faithfully at suitable employment insofar as may be possible;
live without violating any law;
make reparation or restitution to the aggrieved party for the damage or loss caused by his or her offence in an amount to be determined by the court;
make payment of a debt due to the state; and
not associate with persons engaged in criminal activities.
Other Conditions. The court may impose such other conditions as are reasonably related to the offence of conviction, to the protection of the public, or to the rehabilitation of the defendant, and as are within the power of the court to impose. A condition shall not require the defendant to do that which no person can perform or verify.
Standard Conditions. Every order shall require the defendant to remain available in the proceeding communications of the case, or in such other channel as the court designates, for the service of process and for notice of any proceeding under Rule 29.1, and to report any change in username to the Clerk.
Community Service. The court may impose a requirement for community service approved by the Department of Corrections not to exceed thirty (30) days. 6 R. Stat. § 131.618. The order shall state the number of days required, the period within which the service is to be completed, and the manner in which completion is to be reported to the court.
Restitution. The court may impose restitution as a condition of probation, and may revoke probation where a defendant fails to comply with the order within a reasonable time. 6 R. Stat. § 131.619. The order shall state the amount of restitution, the person to whom it is payable, and the time within which it is to be paid. Where the amount cannot be determined at sentencing, the court shall set a hearing to determine it and shall state the date upon the record.
Period of Supervision. Defendants found guilty of a felony and placed on probation shall be under supervision for a period not to exceed ninety (90) days, or thirty (30) days where the defendant is found guilty of a misdemeanour. 6 R. Stat. § 131.620. The period stated in the order shall not exceed the period allowed by this subdivision, and an order that exceeds it is illegal and subject to revision under Rule 29(a)(1).
Modification; Early Termination.
Modification. Upon motion of a party or upon its own motion, and after notice to the parties and an opportunity to be heard upon the record, the court may modify a term or condition of probation or community control. A modification shall not extend the period of supervision beyond the maximum allowed by Rule 28.2(g).
Early Termination. The court may terminate the period of supervision before its expiration where the purposes of supervision have been served.
Notice. The Clerk shall transmit notice of any modification or early termination to the sheriff’s office and shall enter the transmission upon the docket. 6 R. Stat. § 131.614.
Expiration; Discharge. Upon the expiration of the period of supervision the court shall enter the discharge of the defendant from probation or community control upon the docket, and the Clerk shall transmit notice of the expiration to the sheriff’s office.
Violation. Rule 29.1 governs a proceeding upon an alleged violation of probation or community control. Rule 28.2(f) governs revocation for failure to comply with an order of restitution.
Appeal. A defendant may appeal from an order granting probation or an order revoking probation. 6 R. Stat. § 131.804. The State may appeal from an order dismissing a violation of probation or community control and from an order denying restitution. 6 R. Stat. § 131.805.