Fifth Judicial District - Department of Correctional Services

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TITLE: Probation Revocation Hearing

POLICY

When it is determined by the supervising officer that the offender has violated the terms of supervision to the extent that a probable cause hearing should be requested, or if the officer has received information that the offender is a threat to the community or an individual, including the probationer/parolee himself/herself, the supervising officer will discuss the violations with his/her Supervisor before a warrant or probable cause hearing is requested.

A revocation hearing is initiated by a hearing order, or a Report of Violations and a request for a warrant, or by a Preliminary Parole Violation Information (PPVI) and request for warrant, which is completed with supervisory approval and presented to the District Court Judge. The District Court Judge will determine if probable cause exists from the evidence presented to him/her by the supervising officer through the Report of Violations or PPVI. A Report of Violation or PPVI shall include the supervising officer's recommendation and justification for the resolution of the violations. In some cases, the supervising officer and his/her Supervisor may choose to file a Report of Violation only to inform the Court of violations, but recommend that the offender be continued on probation with modified/added conditions of supervision.

PROCEDURE

  1. When an offender is believed to be in violation of the terms and conditions of their probation, the supervising officer and Supervisor shall review the case. A decision will be made whether the violation needs to be reported to the Court, if detention is needed, and what recommendation will be made. Any decision must have supervisory approval prior to submitting the Report of Violations and hearing order/warrant to the Court.
  2. When a Report of Violation is submitted to the Court, the Judge will determine if probable cause exists from evidence presented to him/her in the report of violation submitted by the supervising officer.
  3. All offenders taken into custody within the Fifth Judicial District or extradited back to the county of authority within the Fifth Judicial District will have their initial appearance before a presiding Judge within 24 hours of his/her arrest or return to the county of authority.
  4. The offender will be notified of the violations in the following manner:
    1. If a Report of Violations is written and no hearing is requested (information purposes only), a Report of Violations shall be completed and filed with the Court, in the county of authority, indicating it is requested that the offender be continued on probation. This recommendation may be used when the violations are not serious enough to warrant revocation. If this recommendation is made, the Report of Violations shall be personally delivered and explained to the offender to ensure his knowledge of it, and allow an opportunity for admitting the violation. The review of the report with the parolee shall be documented in Generic Notes in ICON. If the Judge disagrees, a Notice of Hearing date and time will be sent from the Court.
    2. If proceeding without warrant (hearing order), a Report of Violations and hearing order shall be submitted to the court in the county of authority when the offender does not pose a serious threat to the community.
      1. Court personnel will set the hearing at its earliest convenience.
      2. Court personnel will send the hearing order and Report of Violations to the offender's last know address. Supervising officers must ensure the offender has received the Notice of Hearing and the Report of Violations.
      3. If the offender fails to report to his revocation hearing, the Judge will issue a bench warrant.
    3. If proceeding with a hearing order and the offender is already in custody with new pending charges within the county of authority, a Report of Violations and hearing order shall be completed and presented to the Judge setting bond.
      1. The offender will have their initial appearance within 24 hours of the Courts receipt of the Report of Violations and hearing order.
      2. Court personnel will set the probable cause hearing within 10 days of the initial appearance.
      3. If the offender bonds out prior to the court receiving the hearing order, the supervisor may request a warrant, if the offender poses a threat to the community.
    4. When an offender is arrested on a probation warrant, or probation warrant and new pending charges within the county of authority.
      1. Offender will have their initial appearance within 24 hours of arrest by a presiding Fifth Judicial District Judge.
      2. The Polk County court personnel will set the probable cause hearing for misdemeanor cases the following Monday after arrest.
      3. The Polk County court personnel will set the probable cause hearing for felony cases within ten (10) days.
      4. The Region court personnel will set the probable cause hearing in an expedient fashion dependent on the presiding Judge's rotation and availability.
    5. When the supervising officer is notified that an offender is in custody for an active probation warrant in another county or state. The County Attorney's Office and the County Sheriff's office in the county of authority shall determine if extradition is warranted.
      1. If extradition is warranted, the Sheriff's Office in the county of authority will transport the offender back to the county of authority to be held.
      2. The offender will have their initial appearance within 24 hours of arrival in the county of authority.
    6. When the supervising officer is notified that an offender is in custody for new charges in another county or state, the supervising officer shall complete a Report of Violations and warrant and submit them to the Court in the county of authority.
      1. 1) Court personnel will enter the warrant into NCIC, holding the offender for the county of authority.
      2. The County Attorney's office and the Sheriff's Office in the county of authority will determine if extradition is warranted.
      3. If extradition is warranted, the county of authority will transport the offender back to the county of authority.
      4. The offender will have their initial appearance within 24 hours of arrival in the county of authority.
    7. If a warrant/hearing order setting bond is lodged as a back up to bail, in conjunction with new pending criminal charges, a probable cause hearing is held within 10 days after the arrest and detention of the offender or the lodging of the detention warrant. However, when there has been a conviction or a finding of probable cause on new criminal charges, the preliminary hearing is not required.

      NOTE: See policy for Probation Violation Reports, ICON Business Rules for Probation Violation Reports, Hearing Order form and Warrant order form.

  5. Offenders shall receive the Report of Violations and hearing notice at least three (3) days prior to the probable cause hearing, indicating the time and place and specific alleged violation(s).
    1. The supervising officer shall instruct offenders, in writing, of their rights before the probable cause hearings when out of custody and the Court shall advise the offender of their rights if they are in custody. These rights are:
      1. To present evidence and favorable witnesses.
      2. Disclosure of evidence.
      3. To confront adverse witness(es), unless the witness(es) would be subject to risk or harm.
      4. To have counsel of choice present, or in a case of an indigent person who requests assistance to adequately present their case, have counsel appointed.
      5. To request postponement of the hearing for good cause.
  6. The offender's probable cause hearing addressing the violation(s) of probation shall be held in the county of authority before a presiding Fifth District Judge. This will provide the offender with a reasonable opportunity to:
    1. Prepare for and present his/her case.
    2. Have available witnesses to appear on his or her behalf.
    3. Present various forms of evidence.
    4. Have consultation with legal counsel.
  7. The probable cause hearing is a two-step process and determines two questions:
    1. Did the probation violation occur?
    2. If the probation violation did occur, should the probation be revoked or intermediate sanctions imposed?
  8. The probable cause hearing may be delayed or postponed for good cause and the offender may waive the hearing if first informed of his or her rights pertaining to the hearing and the consequences of waiving the hearing.
    1. Due process requires that any waiver of rights by the offender be done knowingly and voluntarily.
    2. The presiding Fifth District Judge should ensure that no form of coercion is used to induce a waiver of the preliminary hearing and that the offender understands the nature and consequences of the hearing before waiving it.
  9. The presiding Fifth District Judge will determine if violations have occurred at the revocation hearing based on the evidence presented. Alternatives to revocation and incarceration may be considered to the extent that public safety is not endangered and if the possibility of successful community adjustment exists. The District Judge will base his/her decision on the following evidence that is presented:
    1. Testimony from the supervising officers.
    2. Documentation and evidence provided by the supervising officer.
    3. Recommendations from the supervising officer.
    4. Recommendations from the County Attorney.
    5. Testimony and evidence presented by the offender.
    6. Recommendations from the defense attorney.
  10. The presiding Fifth District Judge shall make the determination of the final action or resolution of the situation. He/she may sentence the offender to prison when probable cause is found and when it is determined, after consideration of the appropriateness of less severe sanctions, that the clear interest of the public requires incarceration. Options for the Judge may include, but are not limited to the following:
    1. Reinstate probation with added or modified conditions
    2. Order a residential setting.
    3. Revoke the probation and impose the original sentence
  11. The offender shall receive copy of the new revocation hearing order detailing the resolution of the violations.
  12. When supervising an offender from a different district and violation of the terms and conditions have occurred, the supervising officer shall contact the "sending" officer to determine how that district would like the supervising officer to report the violations. In reference to interstate compact cases that are supervised in the Fifth Judicial District, please refer to the Interstate Compact Policies.
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