HOUSE BILL NO. 751
INTRODUCED BY R. STOKER
A BILL FOR AN ACT ENTITLED: "AN ACT REVISING THE LAW REGARDING PETITIONS FOR REVOCATION OF A SUSPENDED OR DEFERRED SENTENCE; AMENDING SECTIONS 46-18-203 AND 46-23-1011, MCA; AND PROVIDING AN APPLICABILITY DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 46-18-203, MCA, is amended to read:
"46-18-203. Revocation of suspended or deferred sentence. (1) Upon the filing of a petition for revocation showing probable cause that the offender has violated any condition of a sentence or any condition of a deferred imposition of sentence, the judge may shall issue an order for a hearing on revocation. The order must require the offender to appear at a specified time and place for the hearing and be served by delivering a copy of the petition and order to the offender personally. The judge may also issue an arrest warrant directing any peace officer or a probation and parole officer to arrest the offender and bring the offender before the court.
(2) The petition for a revocation must be filed with the sentencing court during the period of suspension or deferral, unless the probation or parole function for the offender has been transferred to another judicial district, in which case the petition for revocation must be filed in the judicial district to which that function has been transferred. If a case is transferred, the petition may be heard by any judge of the judicial district. Expiration of the period of suspension or deferral after the petition is filed does not deprive the court of its jurisdiction to rule on the petition.
(3) If the petition for revocation is based in whole or in part on an allegation of a criminal offense committed by the offender that has not yet been adjudicated, a hearing on the petition must proceed if the allegation, as set forth in the petition, shows probable cause.
(3)(4) The provisions pertaining to bail, as set forth in Title 46, chapter 9, are applicable to persons arrested pursuant to this section.
(4)(5) Without unnecessary delay, the offender must be brought before the judge, and the offender must be advised of:
(a) the allegations of the petition;
(b) the opportunity to appear and to present evidence in the offender's own behalf;
(c) the opportunity to question adverse witnesses; and
(d) the right to be represented by counsel at the revocation hearing pursuant to Title 46, chapter 8, part 1.
(5)(6) A hearing is required before a suspended or deferred sentence can be revoked or the terms or conditions of the sentence can be modified, unless:
(a) the offender admits the allegations and waives the right to a hearing; or
(b) the relief to be granted is favorable to the offender and the prosecutor, after having been given notice of the proposed relief and a reasonable opportunity to object, has not objected. An extension of the term of probation is not favorable to the offender for the purposes of this subsection (5)(b) (6)(b).
(6)(7) At the hearing, the prosecution shall prove, by a preponderance of the evidence, that there has been a violation of the terms and conditions of the suspended or deferred sentence. However, when a failure to pay restitution is the basis for the petition, the offender may excuse the violation by showing sufficient evidence that the failure to pay restitution was not attributable to a failure on the offender's part to make a good faith effort to obtain sufficient means to make the restitution payments as ordered.
(7)(8) (a) If the judge finds that the offender has violated the terms and conditions of the suspended or deferred sentence, the judge may:
(i) continue the suspended or deferred sentence without a change in conditions;
(ii) continue the suspended sentence with modified or additional terms and conditions;
(iii) revoke the suspension of sentence and require the offender to serve either the sentence imposed or any sentence that could have been imposed that does not include a longer imprisonment or commitment term than the original sentence; or
(iv) if the sentence was deferred, impose any sentence that might have been originally imposed.
(b) If a suspended or deferred sentence is revoked, the judge shall consider any elapsed time and either expressly allow all or part of the time as a credit against the sentence or reject all or part of the time as a credit. The judge shall state the reasons for the judge's determination in the order. Credit must be allowed for time served in a detention center or home arrest time already served.
(c) If a judge finds that an offender has not violated a term or condition of a suspended or deferred sentence, that judge is not prevented from setting, modifying, or adding conditions of probation as provided in 46-23-1011.
(8)(9) If the judge finds that the prosecution has not proved, by a preponderance of the evidence, that there has been a violation of the terms and conditions of the suspended or deferred sentence, the petition must be dismissed and the offender, if in custody, must be immediately released.
(9)(10) The provisions of this section apply to any offender whose suspended or deferred sentence is subject to revocation regardless of the date of the offender's conviction and regardless of the terms and conditions of the offender's original sentence."
Section 2. Section 46-23-1011, MCA, is amended to read:
"46-23-1011. Supervision on probation. (1) The department shall supervise probationers during their probation period in accord with the conditions set by a sentencing judge. If the sentencing judge did not set conditions of probation at the time of sentencing, the court shall, at the request of the department, hold a hearing and set conditions of probation. The probationer must be present at the hearing. The probationer has the right to counsel as provided in chapter 8 of this title.
(2) A copy of the conditions of probation must be signed by the probationer. The department may require a probationer to waive extradition for the probationer's return to Montana.
(3) The probation and parole officer shall regularly advise and consult with the probationer to encourage the probationer to improve the probationer's condition and conduct and shall inform the probationer of the restoration of rights on successful completion of the sentence.
(4) (a) The probation and parole officer may recommend and a judge may modify or add any condition of probation or suspension of sentence at any time.
(b) The probation and parole officer shall provide the county attorney in the sentencing jurisdiction with a report that identifies the conditions of probation and the reason why the officer believes that the judge should modify or add the conditions.
(c) The county attorney may file a petition requesting that the court modify or add conditions as requested by the probation and parole officer.
(d) The court may grant the petition if the probationer does not object. If the probationer objects to the petition, the court must hold a hearing pursuant to the provisions of 46-18-203.
(e) The provisions of 46-18-203(7)(a)(ii) 46-18-203(8)(a)(ii) do not apply to this section.
(f) The probationer shall sign a copy of new or modified conditions of probation. The court may waive or modify a condition of restitution only as provided in 46-18-246.
(5) (a) Upon recommendation of the probation and parole officer, a judge may conditionally discharge a probationer from supervision before expiration of the probationer's sentence if:
(i) the judge determines that a conditional discharge from supervision:
(A) is in the best interests of the probationer and society; and
(B) will not present unreasonable risk of danger to the victim of the offense; and
(ii) the offender has paid all restitution and court-ordered financial obligations in full.
(b) Subsection (5)(a) does not prohibit a judge from revoking the order suspending execution or deferring imposition of sentence, as provided in 46-18-203, for a probationer who has been conditionally discharged from supervision.
(c) If the department certifies to the sentencing judge that the workload of a district probation and parole office has exceeded the optimum workload for the district over the preceding 60 days, the judge may not place an offender on probation under supervision by that district office unless the judge grants a conditional discharge to a probationer being supervised by that district office. The department may recommend probationers to the judge for conditional discharge. The judge may accept or reject the recommendations of the department. The department shall determine the optimum workload for each district probation and parole office."
NEW SECTION. Section 3. Applicability. [This act] applies to petitions for revocation of parole filed on or after October 1, 2007.
- END -
Latest Version of HB 751 (HB0751.01)
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