Probation Violations

Massachusetts Probation Violations

Probation in Massachusetts is a form of court supervision after a criminal case is resolved upon conviction, after trial or by a guilty plea, or by a continuation without a finding (CWOF). While on probation, an individual is required to comply with certain conditions imposed by the court. These include not being charged with a new offense, checking in with an assigned probation officer, as directed, attending counseling, performing community service, payment of fines, costs and restitution, and more. If an individual is accused of failing to comply with one or more of these conditions, the Office of Probation may file a notification of probation violation.

Notices of probation violations may be filed with the court when the probationer is present, or they may be filed in his or her absence. If filed in the probationer’s absence, the filing probation officer may request issuance of a summons or a warrant to have the individual brought before the court. The first court appearance regarding an alleged probation violation is called an initial violation hearing. The probationer must appear for this event. Failure to do so will almost certainly result in issuance of an arrest warrant. During this event, the probationer is provided with written notice of the alleged violation. This document sets forth the factual reason(s) for the alleged violation. Thereafter, the probationer is entitled to a final violation hearing where the court must make a factual determination if this individual has violated the conditions of probation. At the initial hearing, the court may order the probationer detained pending the outcome of a final violation hearing or may release the person on bail.

The decision to detain an alleged probation violator is within the sole discretion of the court. Considerations include the recommendation of the Probation Officer, basis or reason for alleged violation, severity of charges and sentence imposed in the underlying case, and the probationer’s overall record. If a request for detention is made, the parties will have an opportunity to present materials for the court to consider and orally argue in support of their respective positions. The probationer is then either held or released pending a final probation violation hearing in which he/she has a right to within 7 days. The final hearing date may also be continued beyond 7 days if there is good cause.

At a final probation hearing, the probationer has the right to present witnesses and evidence on his own behalf and the right to confront and cross-examine any witnesses presented against them. The probation department has the burden of proving by a preponderance of the evidence or more likely than not that the probationer violated the terms and conditions of his/her probation. A final violation hearing is considered a civil, not criminal proceeding. Therefore, potential constitutional violations related to searches and seizures and statements to police cannot be raised. The right to confrontation at final violation hearings is not absolute. Hearsay statements are also admissible such as those contained in police reports. After hearing, if the court finds the probationer in violation of his or her probation, it will receive recommendations on sentence or punishment from the parties. Probation will normally make one recommendation, and the Probationer, through counsel, will make another recommendation. If a Probationer is solely serving a suspended sentence and is declared a violator, he or she must serve the term of the suspended time. If suspended time is not applicable, the parties (Probation and the Probationer) will offer competing arguments and sentencing recommendations.

On the final violation hearing date, the Probationer has the right to admit violation and waive the right to a hearing. To do so, the Probationer must confer with legal counsel and complete a form acknowledging that he or she: (1) voluntarily and knowingly gives up the right to a hearing before a judge on the issue of whether they have violated the terms and conditions of probation; (2) received written notice of the probation violation(s); (3) gives up a right to an evidentiary hearing; (4) understands the admission to a violation and waiver of the hearing are free and voluntary acts that are not the result of force, threats or intimidation, or any promise or assurance as to the disposition; (5) may not withdraw the waiver and admission once accepted by the court; and (6) is not under the influence of alcohol, drugs, medications, other substances, and does not have a mental or physical condition that might impair their ability to fully understand these legal rights.

Once this form is executed, a representative of the Probation Department and the Probationer go before the court, tender the admission of violation, and then make recommendations on punishment or disposition for the violations. Examples include termination of probation, continuing the probation on existing terms and conditions, extension of the existing probation sentence or term, conversion of a CWOF into a guilty finding, conversion of a probation term into a suspended sentence, or actual jail time. Sometimes the parties agree on a disposition, and sometimes they do not. In either event, once before the court and following their respective arguments and written submissions, if any, the court makes findings and sentences the probationer accordingly.

If you are on probation in Massachusetts and have been charged with or are under investigation for a new crime, or are failing to comply with the terms and conditions of your probation, call the Law Office of John L. Calcagni III, Inc. for a free consultation.