Massachusetts District Court Rules for Probation Violation Proceedings Rule 9: Violation of Conditions of a Continuation Without a Finding
(a) Notice, Conduct of Hearing, Adjudication. The procedures set forth in these rules regarding notice for, and the conduct and adjudication of, probation violation hearings shall also apply where the Probation Department alleges a violation of probation that was imposed together with a continuance without a finding.
(b) Disposition. The dispositional options available to the court following a determination that one or more conditions of probation imposed together with a continuance without a finding have been violated shall be as follows:
(i) Continuation of the Continuance. The court may decline to modify or revoke the probation order and instead may continue the continuance without a finding and issue to the probationer such admonition or instruction as it may deem appropriate.
(ii) Termination. The court may order that the continuance without a finding be considered completed, terminate the order of probation and enter a dismissal on the underlying criminal case.
(iii) Modification. If the violation consists of a criminal act, or if the court determines that the violation constitutes a material change in circumstance, it may continue the continuance without a finding and modify the conditions of probation including the duration of the continuance.
(iv) Revocation. The court may revoke the order of probation and terminate the continuance without a finding, whereupon a finding of guilty shall be entered.
(c) Execution of Sentence; Stay of Execution. Upon revocation of probation, any sentence that was specified as a condition of the plea or admission and accepted by the court that ordered the continuance, shall be imposed and executed forthwith; provided, however, that such execution may be stayed (1) pending appeal in accordance with Mass. R. Crim. P. 31, or (2) at the court's discretion, and upon the probationer's motion, to provide a brief period of time for the probationer to attend to personal matters prior to commencement of a sentence of incarceration. The execution of such sentence shall not be otherwise stayed.
(d) Imposition of Sentence When No Sentence Previously Specified. Upon revocation of a probation order where no sentence was specified as a condition of the plea or admission and accepted by the court that ordered the continuance, the court shall impose sentence as provided by law.
Added December 2, 1999, effective January 3, 2000.
Continuance Without a Finding with Probation
This rule addresses the situation where the allegation of a probation violation involves a probation order issued together with a continuance without a finding. In such cases, the conditions of probation are also the conditions whereby the underlying criminal case has been continued without the entry of a finding of guilty, following submission and acceptance of a formal plea or admission.
The rule makes clear that the procedure in these cases for commencing, conducting and disposing of probation violation proceedings is the same as in cases where a finding of guilty has been entered following a plea, admission or trial. The only differences from the latter involve the court's dispositional options if a probation violation is found.
Specifically, if the court finds a probation violation and decides as a matter of its discretion to revoke probation, the continuance is thereby terminated, a finding of guilty must be entered and sentence must be imposed. The court will be bound by whatever dispositional terms were set by the probationer and accepted by the court as formal conditions of his or her plea or admission, if any.
The rule takes the position that upon revocation of probation in a case continued without a finding, a sentence that was conditioned on probation compliance should be ordered executed in its entirety. This is parallel to the ruling in Commonwealth v. Holmgren, 421 Mass. 224, 656 N.E.2d 577 (1995), a case which involved execution of a suspended sentence upon violation of probation.
In cases where the defendant submitted his or her plea or admission conditioned only by a requirement that the case be continued without a finding, with no sentencing terms specified in the tender of plea or admission, the court may have indicated what sentence should be imposed if probation is violated and revoked (sometimes referred to as "a Duquette alternative"). Such a sentence should be given great deference but is not binding on the judge who enters the guilty finding and then imposes sentence. This parallels the "straight probation" situation. That is, if a violation is found and the court decides to revoke probation, the sentence to be imposed following entry of the guilty finding may be any sentence provided by law.
Continuance Without a Finding Without Probation
This rule does not address the situation where the court has ordered a case continued without a finding, but has not placed the defendant on probation, that is, where the conditions of the continuance are not conditions of probation.
In Commonwealth v. Rivera, No. SJ-96-0578, (Supreme Judicial Court, Single Justice Decision, November 29, 1996), the Single Justice held that.
"like the procedure for probation revocation, the procedure for revocation of a continuance without a finding may result in the loss of the defendant's liberty, [thus] for purposes of due process it is appropriate to analyze the revocation of a continuance without a finding the same as this court does a revocation of probation.".
Apparently, in Rivera the defendant's case had been continued without a finding, but he had not been placed on probation.
One problem with such cases involves the need for conditions of the continuance to be set forth in writing and given to the defendant. Where a case is continued without a finding, but the defendant not placed on probation, it is not clear how and by whom those conditions are reduced to writing and given to the defendant. Similarly, if the defendant is not on probation, it is not clear who presents the allegation of an alleged violation of the conditions of the continuance. In any event, the Court in Rivera, applying the due process requirements of probation violation proceedings, found that the proceedings were inadequate in terms of notice of the alleged violation, time to prepare for the hearing, and the reliability of the hearsay evidence submitted, and vacated the revocation of the continuance.