Massachusetts Probation Violations Lawyer
General Information About Probation
Probation in Massachusetts is a type of criminal sentence following the resolution of a criminal case that involves supervision of a defendant by the probation department.
The primary goals of probation include rehabilitation of the defendants and protection of the public. While on probation, the defendant or probationer may be required to comply with certain conditions imposed by the court. These include, but are not limited to:
- not being charged with a new offense,
- checking in with an assigned probation officer as directed,
- attending counseling,
- performing community service,
- and the payment of fines, costs and restitution.
If an individual is accused of failing to comply with one or more of his conditions, the probation department may, at its discretion, file a notification of probation violation with the court.
Types of Probation
In the Massachusetts criminal justice system, there are two types of probation:
- administrative and
Those serving a term of administrative probation fall under the authority of the Probation Department, but are not required to check in by phone, in person or otherwise. These probationers are those without any special conditions of probation.
However, because they are still on probation, they face a potential probation violation if charged with a new offense or upon failure to pay probation fees and/or assessed costs, fines, and/or restitution.
Those serving a term of supervised probation are accountable to an assigned probation officer with whom they must periodically check in by phone, email, or in person.
Persons subject to supervised probation can face a potential violator for a wider variety of reasons than those on administrative probation.
Examples here include new criminal charges and failure to meet financial obligations to the court, as well as failing to check in or maintain contact with a probation officer and failing to satisfy any special condition of probation, which may include participating in drug testing, abstaining from drug and/or alcohol use, attendance of counseling or other classes, abiding by no contact and/or no trespass orders, and more.
Conditions of Probation
In Massachusetts, there exist two types of probation conditions:
- general and
General conditions include payment of probation fees, reporting to a probation officer as directed, not leaving the Commonwealth without permission, paying assessed victim-witness fees (in certain cases), and not committing any new offense(s).
Special conditions of probation vary on a case-by-case basis and must be ordered by the court. Special conditions may include:
- a curfew,
- seeking or maintaining employment,
- enrolling in school,
- payment of restitution to victims (in certain cases),
- abiding by stay away or no contact orders,
- undergoing drug screens,
- attendance of counseling or substance abuse treatment,
- participation in classes,
- driving restrictions,
- restrictions on the ownership or possession or firearms and ammunition,
- sex offense registration,
- requirement to wear a GPS monitoring device,
- and more.
Special conditions are tailored to each defendant and criminal case. Once imposed, special conditions can only be modified with permission of the court. A probationer’s failure to comply with either a general or special condition may lead to a probation violation.
When a probationer is alleged to have violated the terms of probation, he or she must appear in Massachusetts criminal court. The probationer’s first court appearance is designed to answer on an alleged probation violation and is called the initial probation violation hearing.
Once before the court, the probationer is provided with written notice of the alleged violation. This document sets forth the factual reason(s) for the alleged violation(s). The issue of bail is also addressed. At this juncture, the court may order the probationer detained pending the outcome of a final probation violation hearing or it may release the probationer on bail. The probationer has the right to a final probation violation hearing within seven (7) days of receiving notice, but this period may be extended for cause.
Final Probation Violation Hearing
At a final probation violation hearing, the probationer may either admit violation or proceed to a full hearing. By admitting the probation violation, the probationer must waive his right to a hearing.
To do so, he must acknowledge both in writing and in open court:
- (1) voluntarily and knowingly gives up the right to a hearing before a judge to determine if he 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 that both the admission to a probation 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.
As stated above, the probationer also has the right to context the violation by proceeding to an evidentiary hearing.
At a hearing, the Probation Department has the burden of proving by a preponderance of the evidence, or more likely than not, that the probationer violated the term(s) and condition(s) of probation.
The probationer has the rights to legal counsel, to present witnesses and evidence on his own behalf, and to confront and cross-examine witnesses presented against him. The parties are then given a chance to present final argument for or against a finding of a violation.
After all the evidence and arguments are presented, the court will make a final determination.
If the court concludes there is no violation, the probationer will be released. Alternatively, if the court determines the probation to be in violation, either after hearing or based on the probationer’s admission, it will impose a sentence or punishment after soliciting recommendations from the parties.
Determining an Appropriate Punishment
With regarding to determining an appropriate punishment, the probationer may offer materials for the court’s consideration. To determine punishment for the violation, the court will consider the recommendation of the probation officer, basis for the alleged violation, severity of charges and sentence imposed in the underlying case, the probationer’s criminal record, and any mitigating or extenuating circumstances offered by the probationer.
Punishment for Probation Violations
The punishment for a probation violation is limited by the sentence originally imposed in the underlying case.
For example, if the probationer is serving a suspended sentence and is found to be in violation of probation, the court must impose the full term of the suspended jail sentence.
If the probationer is solely serving a term of straight probation, the court may impose a jail sentence that is equal to or less than the maximum allowable punishment for the underlying crime that caused the defendant to be placed on probation.
This could even result in no further jail or term of incarceration. These rules also apply where a probationer was convicted and sentenced to multiple offenses. So long as at least on charge resulted in a sentence of straight probation, the probationer may argue for a punishment of no jail.
To get experience legal defense, call to schedule a free consultation with the Massachusetts Criminal Lawyers of the Law Office of John L. Calcagni III.