TITLE FOUR — SENTENCING
Rule 29.1. Probation Revocation
Scope. This rule governs the revocation and modification of probation and of community control imposed under Rule 28.2 and 6 R. Stat. §§ 131.613 through 131.620. In this rule, “probationer” includes an offender in community control, and “probation” includes community control.
Grounds. The court may revoke or modify probation upon a finding that the probationer:
Has violated any term or condition of the order of probation, including any condition imposed under 6 R. Stat. § 131.617;
Has failed to comply with an order of restitution within a reasonable time, as 6 R. Stat. § 131.619 provides;
Has failed to complete a community service program imposed under 6 R. Stat. § 131.618 within the period assigned; or
Has committed a criminal offense during the period of probation.
Initiation; Notice of Violation.
By Whom. A proceeding under this rule is initiated by a notice of violation filed by the prosecuting attorney. A probation officer, the sheriff’s office, or the Department of Corrections may report an alleged violation to the prosecuting attorney, who shall determine whether to file. The court may, upon a report so made, direct the prosecuting attorney to file a notice of violation, or may issue such notice upon its own initiative and cause it to be entered upon the docket.
Where Filed. The notice of violation is filed in the criminal case in which probation was imposed, and is filed and served as Rule 32 provides. No separate case is opened.
Contents. The notice of violation shall state:
The username of the probationer;
The case number, and the Bates number of the filing in which the judgment and the order of probation were entered;
The date of the order of probation and the date of its expiration;
Each term or condition alleged to have been violated, quoted in the words of the order;
The acts or omissions constituting each alleged violation, with the date, time, and place of each so far as they are known;
The evidence relied upon, including the identity of each witness;
Whether the probationer is then in custody, and if so, upon what authority; and
The disposition the State will seek.
Amendment. A notice of violation is not amended. A notice of violation that is defective, or that omits an alleged violation, is cured by a corrected refiling under Rid. R. Civ. P. 5.3(10), which bears its own filing date. The court shall not find a violation not alleged in a notice of violation accepted for filing, except upon the probationer’s admission made in open court.
Process Upon the Notice.
Summons. The court shall cause the probationer to be summoned to appear, in the manner provided by Rule 6, and a copy of the notice of violation shall accompany the summons.
Warrant. Upon a representation of the prosecutor that the probationer will not appear unless arrested, or upon the probationer’s failure to appear in response to a summons, the court may authorize the issuance of a warrant under Rule 6(1)(b). The court shall place the warrant within the in-game warrants system, formatted as Rule 6(1)(c) prescribes: “MERITS OF OFFENSE; NOTIFY TO ENTER DISCORDCODE; RETURN TO JUDGE”
Custody. A probationer arrested upon a warrant issued under this rule shall be booked and delivered to a Department of Corrections facility as 6 R. Stat. §§ 131.201 and 131.202 provide. No bond hearing and no bail hearing shall be held, and no citation or collection shall be levied against the probationer to secure release, as 6 R. Stat. § 131.205 forbids.
Preliminary Hearing.
Purpose. The preliminary hearing determines whether there is probable cause to believe that the probationer has violated a term or condition of probation.
Time. Where the probationer is in custody upon the alleged violation, the preliminary hearing shall be held within twenty-four (24) hours of the filing of the notice of violation. Where the probationer is not in custody, it shall be held within seventy-two (72) hours of the filing of the notice of violation. The period is computed as Rule 46 provides and is enforced upon the motion of a party or upon the court’s own initiative.
Waiver. The probationer may waive the preliminary hearing in writing or upon the record in open court, in which event the matter proceeds directly to the final hearing.
Combination. The court may hold the preliminary hearing and the final hearing together where the probationer consents and the evidence is then available.
Rights at the Preliminary Hearing. The probationer shall be given notice of the alleged violations, shall be permitted to appear and to speak, to present evidence, and to question any adverse witness who is present, unless the judge finds good cause for not allowing confrontation and states that finding upon the record.
Determination. If the judge finds probable cause, the judge shall order the matter to a final hearing and shall state the terms upon which the probationer is to appear. If the judge does not find probable cause, the judge shall dismiss the notice of violation and, where the probationer is in custody upon it alone, shall order the probationer released.
Final Hearing.
Time. The final hearing shall be held within seventy-two (72) hours of the preliminary determination or of the waiver of the preliminary hearing, unless continued for cause stated upon the record. Where the probationer is in custody upon the notice of violation alone, the total period of detention before the final hearing shall not exceed seventy-two (72) hours, exclusive of any continuance granted at the probationer’s request.
Where Held. The final hearing is held in open court or in the proceeding communications of the case, and is maintained upon the record.
Rights of the Probationer. At the final hearing the probationer shall have the right:
To written notice of each claimed violation;
To disclosure of the evidence against the probationer, which the court shall order upon request and which is governed by Rule 14 so far as that rule may be applied;
To be present, to be heard in person, and to present witnesses and documentary evidence;
To confront and cross-examine each adverse witness, unless the judge specifically finds good cause for not allowing confrontation and states that finding upon the record;
To be represented by counsel, and to the assignment of counsel under Rule 8 and 3 R. Stat. § 161.202(a) where the probationer is indigent or indigent but able to contribute;
To a hearing before a neutral judge; and
To a written statement by the judge of the evidence relied upon and the reasons for the disposition entered.
Presence. The probationer’s presence is required. No hearing upon a notice of violation shall be held in the probationer’s absence except:
where the probationer expressly waives presence in the manner Rule 18(c) prescribes, the advice required by Rule 18(c)(2) being given so far as it may be applied; or
where the probationer, having been given the presence warning as to the hearing, has failed to appear and the court has made, upon the record, findings answering to those required by Rule 18.3(e), an absentia authorization having been entered under Rule 18.3(f).
Standard of Proof. The State bears the burden of proving each alleged violation by a preponderance of the evidence. A finding of a violation shall be made as to each alleged violation separately, and the judge shall state the finding upon the record.
Evidence. The Ridgeway Rules of Evidence apply at a hearing under this rule, except that the judge may receive evidence that would otherwise be excluded as hearsay upon a finding, stated upon the record, that the evidence is reliable and that good cause exists for not producing the declarant.
Violation Consisting of a New Offense.
A judgment of conviction of an offense committed during the period of probation is conclusive proof of the violation alleged upon that offense.
An acquittal, a dismissal, or the absence of a prosecution upon the conduct alleged is not a bar to a finding of violation under this rule, the standard of proof being that prescribed by Rule 29.1(7).
The court may continue the hearing pending the disposition of a prosecution upon the same conduct.
Restitution. Where the alleged violation is a failure to comply with an order of restitution, the court shall determine, before revoking probation:
Whether the probationer had the means to comply within the time allowed;
Whether the failure to comply was willful; and
Whether a reasonable time for compliance has in fact elapsed, as 6 R. Stat. § 131.619 requires.
Where the failure was not willful, or where a reasonable time has not elapsed, the court shall not revoke probation upon that ground, but may extend the time for compliance, modify the amount or the schedule of payment, or impose an alternative condition.
Admission of a Violation. The probationer may admit an alleged violation. The judge shall accept an admission only after determining upon the record that it is made voluntarily, with an understanding of the nature of the alleged violation and of the dispositions the court may impose, and that the probationer understands that by admitting the violation the probationer gives up the right to a hearing, to confront the witnesses against the probationer, and to require the State to prove the violation.
Dispositions. Upon a finding or an admission of a violation, the court may:
Continue probation upon the existing terms and conditions, with or without a warning entered upon the record;
Modify the terms and conditions of probation, including by imposing any condition enumerated in 6 R. Stat. § 131.617 and by imposing a requirement of community service approved by the Department of Corrections not exceeding thirty (30) days, as 6 R. Stat. § 131.618 provides;
Extend the period of probation, provided that the total period, measured from the original order, shall not exceed ninety (90) days where the defendant was found guilty of a felony or thirty (30) days where the defendant was found guilty of a misdemeanor, as 6 R. Stat. § 131.620 requires;
Revoke probation and impose any sentence that might originally have been imposed upon the conviction, subject to 6 R. Stat. § 131.310 and to credit for time served under 6 R. Stat. § 131.311; or
Where probation was imposed as part of a split sentence under 6 R. Stat. § 131.616, order the defendant to serve the portion of the sentence that was suspended.
Findings and Order. The court shall enter a written order stating each violation found, the evidence relied upon, the reasons for the disposition, and the disposition entered. The order shall recompute credit for time served. The clerk shall record the order as 3 R. Stat. § 131.102 requires and shall transmit it to the Department of Corrections and, where probation is continued, modified, or extended, to the sheriff’s office as 6 R. Stat. § 131.614 requires.
Dismissal. Where the State fails to prove a violation, the court shall dismiss the notice of violation and shall so state upon the record. Probation continues upon its existing terms.
Expiration of the Period of Probation. The court retains jurisdiction to hear and determine a violation alleged in a notice of violation filed before the expiration of the period of probation, notwithstanding that the period expires before the hearing is held or the order entered. No notice of violation shall be filed after the period of probation has expired.
Warrants Upon Disposition. Where the court revokes probation and orders the defendant into custody, and the defendant is not then present, the court shall authorize a warrant under Rule 6 and shall place it within the in-game warrants system in the form prescribed by Rule 6(1)(c). Where the court dismisses the notice of violation or continues probation, the court shall cause any warrant issued under Rule 29.1(4)(b) to be cancelled and its entry in the in-game warrants system to be removed.
Appeal. A defendant may appeal from an order revoking probation, as 6 R. Stat. § 131.804 provides. The State may appeal from an order dismissing a violation of probation or community control, as 6 R. Stat. § 131.805 provides. Rule 35 governs. An order placing a defendant on probation or an order revoking probation may be stayed as Rule 31 provides.