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Boston Municipal Court Standing Order 2-04: Probation Violation Proceedings

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I. Authority and Scope

This order is promulgated by the Chief Justice of the Boston Municipal Court Department pursuant to his statutory authority G.L. c. 211B, s. 10 and G.L. c. 218, s. 51A. This standing order prescribes the procedures in the Boston Municipal Court Department to be followed upon the allegation of violation of an order of probation issued in a criminal case after a finding of guilty or after a continuance without a finding. This standing order does not apply to an alleged violation of pretrial probation.

II. Definitions

In construing this standing order, the following terms shall have these meanings:

"Continuance without a finding" means the order of a court, following a finding of sufficient facts, when a criminal case is continued to a date without a guilty finding. A continuance without a finding may include conditions imposed in an order of probation. Violation of the order may result in the revocation of the continuance, a finding of guilty and imposition of sentence. Compliance with the order will result in dismissal of the criminal case.

"District Attorney" means the prosecutor and includes the Attorney General if the criminal case in which probation was ordered was prosecuted by the Office of the Attorney General.

"General conditions of probation" means the conditions of probation that are imposed in every order of probation.

"Probation order" means the court order that places a defendant on probation and which states the conditions of probation.

"Pretrial probation" means the probationary status of a defendant after a probation order issued before a trial or a plea of guilty or an admission to sufficient facts.

"Revocation of probation" means the revocation by a judge of an order of probation after a finding that a condition of that probation order has been violated.

"Special conditions of probation" means any condition of probation other than one of the general conditions of probation.

"Surrender" means the procedure by which a probation officer requires a probationer to appear before the court for a judicial hearing regarding an allegation of a probation violation.

III. Beginning Violation Proceedings: Based on New Criminal Conduct

(a) Where Probation Order and Criminal Charge Involve Same Division of the Boston Municipal Court Department

(i) Issuance and Service of Notice. When a criminal complaint is issued by a court against a person who is the subject of an order of probation issued by that same court, the probation department shall begin violation proceedings against that probationer. The probation department shall issue a notice of probation violation and hearing at the arraignment on the criminal charge. This notice shall be handed to the defendant at arraignment after the assignment of a date and time for a probation violation hearing and this service shall be recorded on the case docket. If in-hand service is not possible, the notice shall be sent to the probationer by first-class mail, unless the court orders otherwise. Sending the notice by first-class mail shall be recorded on the case docket. Out-of-court service other than by mail requires a written return of service. A copy of each notice of probation violation and hearing shall be provided to the district attorney immediately after its issuance.      

The court, after review of the notice at arraignment and as a matter of its discretion, may order no other proceedings in the matter.

(ii) Contents of Notice. The notice of probation violation and hearing shall describe the crime charged in the new complaint and shall state any other conditions of the order of probation that the probation department alleges have been violated with a description of each violation. The notice shall also state the date, time and place of the hearing.      

(iii) Scheduling of Hearing. The hearing shall be on a date no less than seven days after service on the probationer of the notice of violation and hearing unless the probationer waives the seven-day notice period. Unless otherwise determined by the court for good cause and stated on the record, the hearing date shall not be later than 30 days after service of the notice of violation and hearing. In every case, the court shall give primary consideration to the need for promptness in conducting the probation violation hearing.  

(b) Where Probation Order and Criminal Charge Involve Different Divisions of the Boston Municipal Court Department

(i) Issuance and Service of Notice. When a criminal complaint is issued by any division of the Boston Municipal Court Department against a person who is the subject of an order of probation issued by another division of the Boston Municipal Court Department, the probation department in the division where the criminal complaint is issued shall begin violation proceedings against that probationer. The probation department shall issue a notice of probation violation and hearing at the arraignment on the criminal charge. The notice shall be handed to the defendant at arraignment after the assignment of a date, time and division for the probation violation hearing. This service shall be recorded on the case docket. If in-hand service is not possible, the notice shall be served on the probationer by first-class mail, unless the court orders otherwise. Service of the notice by first-class mail shall be recorded on the case docket. Out-of-court service other than by mail requires a written return of service. A copy of each notice of probation violation and hearing shall be provided to the district attorney immediately after its issuance.      

The court, after review of the notice at arraignment and as a matter of its discretion, may order the hearing held at the division that issued the criminal complaint or at the division that issued the order of probation. The location of the hearing shall be set out in the notice of probation violation and hearing. The court may in its discretion order no other proceedings in the matter.      

(ii) Contents of Notice. The notice of probation violation and hearing shall describe the crime charged in the new complaint and shall state any other conditions of the order of probation that the probation department alleges have been violated with a description of each alleged violation. The notice shall also state the date, time and place of the hearing.      

(iii) Scheduling of Hearing. The hearing date shall be no less than seven days after service on the probationer of the notice of violation and hearing unless the probationer waives the seven-day notice period. Unless otherwise determined by the court for good cause and stated on the record, the hearing date shall not be later than 30 days after service of the notice of violation and hearing. In every case, the court shall give primary consideration to the need for promptness in conducting the probation violation hearing.      

(c) Where Probation Order and Criminal Charge Involve Different Departments

(i) Issuance and Service of Notice. When a criminal complaint is issued by a court against a person who is the subject of an order of probation issued by a court of a different department, the probation department at the court that issued the criminal complaint shall issue a notice at the arraignment on the new criminal charge directing the probationer to appear in the court where the defendant is on probation. The notice shall be handed to the probationer at arraignment and the service shall be recorded on the case docket. The probation department immediately shall send a copy of the notice, indicating in-hand service, to the probation department of the court that issued the order of probation, together with a copy of the complaint and police report on the new criminal charge.

(ii) Contents of Notice. The notice of probation violation handed to the probationer at the court that issued the new criminal complaint shall direct the probationer to appear on a date and time at the court that issued the order of probation. A copy of the notice shall be kept by the probation department of the court that issued the new criminal complaint. An additional copy of the notice shall be given to the district attorney of the court issuing the new criminal complaint.

IV. Beginning Violation Proceedings: Based on Conduct Other than New Criminal Conduct    

(a) Issuance and Service of Notice.

When a probation officer of a court that has issued an order of probation finds that a probationer has violated any condition of that order other than being charged in a new criminal complaint, that probation officer shall decide whether to begin probation violation proceedings. A judge may order the beginning of violation proceedings.      

The notice of probation violation and hearing shall be handed to the probationer or sent by first-class mail, unless the court orders otherwise. Giving the notice in hand or sending by first-class mail shall be noted in the court record. Out-of-court service other than by first-class mail requires a written return of service. A copy of each notice of probation violation and hearing shall be provided to the district attorney immediately after it is issued.      

(b) Contents of Notice.

The notice of probation violation and hearing shall describe the conditions of the order of probation that the probation department alleges have been violated and shall order the probationer to appear on a date and time for the the appointment of counsel, if necessary, and to scheduling a probation violation hearing.            

(c) Scheduling of Hearing.

When the probationer appears as a result of the notice required by section (a), the court shall appoint counsel, if necessary, and schedule a probation violation hearing, the date to be no less than seven days later unless the probationer waives the seven-day notice period. Unless otherwise determined by the court for good cause and stated on the record, said hearing date shall not be later than 30 days after service of the notice of violation and hearing. In every case, the court shall give primary consideration to the need for promptness in conducting the probation violation hearing.

V. Preliminary Violation Hearings

(a) Purpose.

The court shall order a preliminary probation violation hearing only when the probation department asks to hold a probationer in custody on the basis of an alleged violation of probation until a full probation violation hearing is held. The issues to be decided at a preliminary probation violation hearing are whether there is probable cause to believe that the probationer has violated a condition of the order of probation and, if so, whether the probationer should be held in custody or released on conditions, including bail.      

(b) Notice of Hearing.

The probationer shall be given a written notice indicating the preliminary nature of the hearing, the alleged probation violations; and that the purpose of the hearing is to decide if there is probable cause to believe that he or she has committed the alleged violations. The notice shall be handed to the probationer when he or she is before the court having been arrested on a new criminal charge, having been arrested for an alleged probation violation or for any other reason.      

(c) Conduct of Hearing.

A judge shall hear preliminary probation violation hearings in a courtroom and on the record. The probationer has the right to counsel. Following notice and appointment of counsel, if necessary, the probationer shall be allowed a reasonable time to prepare for the hearing. At the hearing, the probation officer shall present evidence to support a finding of probable cause. An assistant district attorney may help in the presentation of evidence. The probationer has the right to be heard in opposition. Testimony shall be taken under oath. The court shall admit such evidence as it thinks relevant and appropriate. The hearing shall be limited to the issue of whether probable cause exists to believe that the alleged violation of probation has occurred. If probable cause is found, a final probation violation hearing shall be scheduled, the probationer shall be handed a notice of the hearing and the court may order the probationer to be held in custody until the final violation hearing or be released, with or without conditions, including bail.

VI. Probation Violation Hearings

(a) In General.

A judge shall conduct probation violation hearings in open court, on the record and, with such flexibility and degree of formality as the court thinks appropriate, consistent with the requirements of law. All testimony shall be taken under oath. A probation officer shall present the case against the probationer. A probationer is entitled to the assistance of counsel, including the appointment of counsel if determined by the court to be indigent.      

(b) Requirement of Two-Step Procedure.

Probation revocation hearings shall go forward in two steps, the first to decide whether the alleged violation or violations occurred, the second to determine the disposition if the court finds a violation of probation has occurred.      

(c) Adjudication of Alleged Violation.

Probation violation hearings shall begin with the probation officer describing the violation or violations alleged in the notice of violation and continue with a presentation of the evidence supporting the allegations. The probationer may present evidence on the issue of the alleged violation. Each party may cross-examine witnesses produced by the opposing party. The probation officer has the burden of proving the alleged violations. The standard of proof is the civil standard of preponderance of the evidence. Hearsay evidence is admissible at probation violation hearings in accordance with applicable case law. After the presentation of evidence, both the probation officer and the probationer may make a closing statement.      

(d) Dispositional Decision.

If the court finds that the probationer has violated one or more conditions of probation, the probation officer shall recommend to the court one of the dispositions stated below and may present evidence to support the recommendation.      

(e) Continuances.

Probation violation hearings shall be continued only by a judge and only for a good cause stated on the record. Any continuance allowed shall be to a specific date.      

(f) Participation of the District Attorney.

The district attorney may participate in probation violation hearings as provided in G.L. c. 279, s. 3. If the district attorney intends to appear at a probation violation hearing, he or she shall meet before the hearing with the probation officer responsible for presenting the matter to the court to coordinate the district attorney's involvement in the hearing with the planned presentation of the probation officer.

VII. Finding and Disposition

(a) Requirement of Finding.

At the end of the presentation of evidence, the court shall decide whether the probationer violated one or more conditions of an order of probation, as alleged.      

(b) Finding of No Violation.

If the court decides that the probation officer failed to prove by a preponderance of the evidence that the probationer committed a violation alleged in the notice of probation violation and hearing, that finding shall be entered on the record.      

(c) Finding of Violation.

If the court decides that the probation officer proved by a preponderance of the evidence that the probationer violated one or more conditions of probation as alleged in the notice of probation violation, or if the probationer agrees or admits to a violation, that finding shall be entered on the record. The court shall make findings of fact in writing or on the record to support the finding of a violation, stating the evidence relied upon.      

(d) Disposition After Finding of Violation.

After the court has entered a finding that a violation of probation occurred, the court may order any of the dispositions below that it thinks appropriate.      

(i) Continuance of Probation. The court may decide not to change or revoke probation.      

(ii) Termination. The court may terminate the order of probation.      

(iii) Modification. The court may change the conditions of probation. A change may include adding reasonable conditions and extending the order of probation.      

(iv) Revocation; Statement of Reasons. The court may decide to revoke the order of probation. If the court orders revocation, it shall state the reasons in writing or on the record.      

(e) Execution of Suspended Sentence.

After revocation of an order of probation, any sentence that was imposed, which was suspended, shall be ordered executed immediately.

(f) Imposition of Sentence Where No Sentence Previously Imposed Before.

After revocation of probation in a case where no sentence was imposed following conviction, the court shall impose a sentence as provided by law.

VIII. Violation of Conditions of a Continuance Without a Finding

(a) Notice, Conduct of Hearing, Adjudication.

The standards regarding probation violation hearings shall also apply to allegations of a violation of probation that was imposed together with a continuance without a finding.

(b) Disposition.

The court may make the following dispositions after a decision that one or more conditions of probation imposed together with a continuance without a finding have been violated:

(i) Continuation of the Continuance. The court may reimpose the continuance without a finding.

(ii) Termination. The court may terminate the order of probation and dismiss the criminal case.

(iii) Modification. The court may change the conditions of probation including the length of the continuance.

(iv) Revocation. The court may revoke the order of probation, terminate the continuance without a finding, enter a finding of guilty and impose a sentence as provided by law.

Adopted effective September 15, 2004.