RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Time Limitations

RI Criminal Defense Practice Manual CoverRHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

PROBATION VIOLATION HEARINGS

Time Limitations

State v. Taylor, 306 A.2d 173 (R.I. 1973) and State v. Santos, 498 A.2d 1024 (R.I. 1985). Probation revocation proceedings must commence during period of probationary term unless period is tolled by issuance of a capias or warrant and a good faith effort is made to serve process.

“…the issuance of an unexecuted capias before a defendant has completed a deferred sentence tolls the running of the limitations period provided the state has met its obligation to make a bona fide effort to serve the accused. If no action is taken or a diligent effort to serve the defendant is not made, the state is barred from bringing violation charges after the limitations period has run.” Santos, 498 A.2d at 1026.
State v. Dantzler, 690 A.2d 338 (R.I. 1997). Defendant escaped from prison and was charged with committing sexual assault. His probation was revoked even though those periods did not commence until his release from the A.C.I. R.I.S.C. affirmed.

While defendant’s suspended sentence had not commenced, an “implied condition of good behavior comes into existence at the very moment the sentence is imposed and which remains until expiration of the total term of the sentence.” Id. at 340. See also, State v. Jacques, 554 A.2d 193 (R.I. 1989), wherein a probation revocation was upheld while defendant was on parole but before the commencement of his probation.
State v. Barber, 767 A.2d 78 (R.I. 2001). While incarcerated on a 20-year prison sentence, defendant assaulted two correctional officers and was found in violation of his probation. Defendant appealed, arguing that the probation terms (“probation for 5 years, said probation to commence upon defendant’s release from the ACI”) prevented a violation while in the A.C.I.

R.I.S.C. denied the appeal, stating that good behavior is always an implied condition while probation hangs over a defendant’s head, and “it would violate public policy and the underlying reasons for probation” if defendant could violate that implied condition in prison without probationary consequences. Id. at 79.
Defendant’s contention that the violation hearing was barred by the doctrine of laches because his violation notices were filed as late as fourteen months after the assaults, was inapposite because there was no evidence that defendant suffered any prejudice from the delay.
State v. Lawrence, 658 A.2d 890 (R.I. 1995). A two-month delay prior to the violation hearing was not ruled a due process violation since many of the continuances were attributable to defendant. R.I.S.C. affirmed.

In determining whether delays in probation violation hearing violate rule 32(f)’s time constraints, the court must consider the nature and circumstances of delay as well as defendant’s contribution towards any delay.
“…we are of the opinion that §12-19-9 is quite clear in mandating that a defendant may be held without bail pending a probation-revocation hearing for a period not exceeding ten (10) days excluding Saturdays, Sundays and holidays….Thus our interpretation of §12-19-9 must ultimately turn on the nature and extent of a criminal defendant’s conduct in contributing to the delay and conversely, those continuances attributable to the state.” Id. at 893.
State v. Tavares, 837 A.2d 730 (R.I. 2003). Trial court violated defendant although his probationary period had expired. R.I.S.C. reversed.

Defendant’s probation was tolled by an outstanding warrant; however, once the warrant cancelled, “it was incumbent upon the Superior Court and the state to move on the violation hearing within a reasonable amount of time. Instead, the warrant was cancelled and Tavares was released on bail without a finding. By failing to proceed with a hearing during the tolling period, the state was barred from seeking to have defendant declared a violator or ordered to serve a term of incarceration.” Id. at 734.
State v. Cosores, 891 A.2d 893 (R.I. 2006). Defendant was originally sentenced to a year of probation and violated his conditions with three months remaining. However, a series of continuances, primarily of the Court’s own doing, resulted in defendant’s violation hearing taking place almost fourteen months after his probation expired. Defendant was declared a violator at the hearing and served several months in prison. R.I.S.C. vacated the judgment.

The state argued that the appeal was moot, by way of defendant’s completed prison sentence. R.I.S.C. declined to declare the appeal moot and responded, “Although the completion of a prisoner’s sentence renders his or her appeal from the revocation of a term of supervised release moot, we deem the issue…to be of extreme public importance and capable of repetition, yet evading review.” Id. at 894.
“If no action is taken or a diligent effort to serve the defendant is not made, the state is barred from bringing violation charges after the limitations period has run.” Id. (quoting State v. Santos, 498 A.2d 1024, 1026 (R.I. 1985)).
“The law is clear: a defendant must be declared a violator during the probationary period. A defendant should not have the threat of incarceration hanging over his head for an indeterminate time… Thus, the court did not have the authority to declare the defendant a violator.” Id. at 894-95.

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