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Massachusetts District Court Rules for Probation Violation Proceedings Rule 2: Definition of Terms

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In construing these rules, the following terms shall have the following meanings:

"Continuance without a finding" means the order of a court, following a formal submission and acceptance of a plea of guilty or an admission to sufficient facts, whereby a criminal case is continued to a date certain without the formal entry of a guilty finding. A continuance without a finding may include conditions imposed in an order of probation (1) the violation of which may result in the revocation of the continuance, entry of a finding of guilty and imposition of sentence, and (2) compliance with which will result in dismissal of the criminal case.

"District Attorney" means the criminal prosecuting authority including 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 as a matter of course in every order of probation, as set forth in the official form promulgated for such orders.

"Probation order" means the formal, written court order whereby a defendant is placed on probation and which expressly sets forth the conditions of probation.

"Pretrial probation" means the probationary status of a defendant pursuant to a probation order issued prior to a trial or the formal submission and acceptance of a plea of guilty or an admission to sufficient facts.

"Revocation of probation" means the revocation by a judge of an order of probation as a consequence of a determination 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 probation violation.

Added December 2, 1999, effective January 3, 2000.

Commentary. This rule provides definitions for six terms that are important for a clear understanding of various provisions of these rules.

The definition of "continuance without a finding" is provided to make clear that, as used in these rules, the term presupposes that the defendant whose case has been so continued has formally submitted, and the court has accepted, a plea of guilty or an admission to sufficient facts. Thus there is no "continuance without a finding" unless a guilty plea or admission has been properly tendered and accepted.

This definition also makes clear that the conditions of the continuance may be set forth in an order of probation. Thus, upon violation of one or more conditions of probation, the court may proceed to enter a guilty finding and impose sentence, as provided in Rule 9. It may be possible for a court to continue a case without a finding without imposing the conditions of the continuance as probation conditions, but these rules have no application in such a circumstance. If the conditions of a continuance without a finding, whether or not imposed as conditions of probation, are not violated, the criminal case may be dismissed. See Commonwealth v. Pyles, 423 Mass. 717, 672 N.E.2d 96 (1996).

"Probation order" is defined as a written court order that specifies the conditions imposed. Fundamental fairness requires that if a probationer is to be subject to sanctions for failure to obey probation conditions, those conditions must be clearly specified. And proof of a violation will require evidence that the defendant was made aware of the conditions he or she allegedly violated. Conditions of probation must not be vague. See Commonwealth v. Power, 420 Mass. 410, 650 N.E.2d 87 (1995). A written order is conducive to clarity. The probation order also fulfills a statutory requirement for written conditions: "Every person released upon probation shall be given by the probation officer a written statement of the terms and conditions of the release." G.L. c. 276, s. 85.

The definition of "pretrial probation" makes clear that this term includes probation orders issued before a trial, a plea or an admission. A defendant placed on pretrial probation under G.L. c. 276, s. 87, is formally on probation, but violation of such probation would not appear to subject the probationer to any sanction other than the resumption of the criminal proceeding. Having not admitted guilt or been tried, and having waived no rights, such a probationer would not appear to be subject to any sentencing, let alone any loss of liberty, even if a violation of such probation were alleged and proved. As a result, the due process requirements that are the central focus of these procedural rules do not apply to an alleged violation of a pretrial probation order, and Rule 1 expressly so provides.

The definition of "revocation of probation" makes clear that this is an order that must be preceded by a judicial determination that a condition of a probation order has been violated.

Special conditions of probation are defined simply as any condition other than the "general conditions." A violation of such a special condition (or a general condition other than the prohibition against any violation of law) has traditionally, and perhaps unfortunately, been referred to as a "technical" violation.

"Surrender" is defined in accordance with Commonwealth v. Durling, 407 Mass. 108, 111, 551 N.E.2d 1193, 1195 (1990):

"When a violation is alleged, the probation officer "surrenders" the defendant to the court, subjecting the defendant to possible revocation of his probation.".

This definition is intended to clarify that surrender is the process by which the Probation Department brings the probationer before the court to answer for an alleged violation. It may be effected by arrest with or without a warrant under G.L. c. 279, s. 3, or by a notice requiring the defendant to appear before the court. If a defendant is already before the court on a separate matter (for example, following an arrest on a new alleged crime, with or without a warrant, or on a summons on a new alleged crime), he or she may be notified at that time of the probation violation and ordered to appear at, or held in custody until, a probation violation hearing. In such cases no actual surrender by the Probation Department is required, since the defendant is before the court for a different reason when violation proceedings are commenced.

This definition of "surrender" clarifies any confusion caused by the use of the term to mean the process following a revocation of probation where a sentence is executed or imposed. See, e.g., Commonwealth v. Duro, No. 95-P-2 186 (Appeals Court, March 28, 1997) (summary disposition) (court refers to "order revoking the defendant's probation and surrendering him to the custody of the State...").