Local Rule LCrR 32.1: PROBATION AND REVOCATION OF PROBATION

LCrR 32.1 PROBATION AND REVOCATION OF PROBATION

(a) ASSIGNMENT TO A PROBATION OFFICER Immediately following a sentence of probation or a split sentence, the defendant shall be assigned to a probation officer.

(b) CONDITIONS OF PROBATION.

The Court shall impose such conditions of probation as are necessary to provide a benefit to the probationer and protection to the public and may modify or enlarge such conditions at any time prior to the expiration or termination of the sentence as deemed advisable. The probationer shall be provided by the probation office with a written statement and an explanation of the conditions imposed. If the matter cannot be resolved by the probation office, the probationer may request clarification of any condition from the sentencing judge and may petition the sentencing judge for a modification of the conditions imposed.

(c) HEARING ON ALLEGED VIOLATIONS OF PROBATION.

(1) Unless waived by the probationer after due notification of rights, a hearing shall be held on all alleged violations of probation where revocation is a possibility to determine whether a violation has occurred and, if so, the appropriate disposition. Prior to the hearing, the probationer shall be provided by the probation office with written notice of all alleged violations, and notice of the rights guaranteed by subsection (2), including the right to counsel and the right to appointed counsel if indigent.

(2) At the probation revocation hearing, which shall be held on the record in open court, the probationer shall be afforded:

(i) access to records regarding the probation violation;

(ii) the right to be represented by counsel, including the right to appointed counsel if indigent;

(iii) the right to subpoena and present witnesses and documentary evidence; and

(iv) the right to confront and cross-examine witnesses against the probationer.

(3) The government shall be represented by counsel at the probation revocation hearing.

(4) Before probation is revoked the Court, in cases where the facts of violation are contested, shall make findings of fact and shall find that the government has established by a preponderance of evidence that the probationer has violated a condition of probation.

(d) VIOLATION OF A PROBATION CONDITION; RESENTENCING.

Upon finding a violation of a condition of probation the Court may: continue the existence with or without modification; enlarge the conditions of probation; revoke the probation and require the probationer to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed. In resentencing a probation violator the procedures governing initial sentencing decisions shall apply.

(e) HEARINGS DELEGATED TO THE MAGISTRATE JUDGE.

A hearing on an alleged violation of probation as provided in sub-section (c)(2) may be delegated by the Court to the magistrate judge. Following a hearing before the magistrate judge, the magistrate judge shall file written findings and recommendations. The Court shall make a de novo determination of those portions of the magistrate judge's report to which objections are made and may accept, reject, or modify in whole or in part, the findings and recommendations made by the magistrate judge. The Court, however, need not conduct a new hearing and may make a determination based on the record, evidence, recall witnesses, or recommit the matter to the magistrate judge. The Court may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions. While the matter is pending before the magistrate judge, the magistrate judge shall have the authority to issue a bench warrant for the apprehension of the probationer for failure to appear before the magistrate judge as directed, or for failure to comply with any release conditions imposed by the magistrate judge.