Probation in Massachusetts dates back to 1841. It is a court-ordered penalty that lets a person avoid jail by following the supervision of a probation officer and meeting certain terms and conditions. Thousands of people are on probation in Massachusetts each year.
Conditions of Massachusetts Probation
Judges in Massachusetts have a broad sentencing power. A judge may place someone on probation for any amount of time they believe to be appropriate and proper. Judges may also set any conditions they feel are appropriate. For instance, Judges may order someone on probation to complete a specific rehabilitative program either for violence or substance abuse or to perform community service for a set period of time or to stay away from a certain person. As long as the conditions of probation are not vague conditions may be imposed even if they violate a person’s rights. An example would be ordering someone to stay away from a certain person or location. Certain terms and conditions are required for everyone on probation including no new arrests, pay all fines and fees, update probation on address and employment, not to leave the state without permission and report to probation officer as requested. Only a judge may set the conditions of probation, not a probation officer.
Probation Fees in Massachusetts
Anybody sentenced to probation in Massachusetts must pay a “service fee.” The amount of the fee depends on whether the supervision is administrative or supervised. Failure to pay fees may result in a violation and a possible revocation of probation.
Violation of Probation
A person violates probation by committing a new criminal offense, not paying fines, or failing a specific condition. Court rules govern probation violations and provide the authority for probation officers to arrest for alleged violations. A probation officer may obtain warrants for violators and have the violators arrested.
Notice
For a violation of probation, the probation department must file a written notice of violation specifying the nature of the violation and the date, time, and place for the hearing. A probation surrender hearing is the final hearing. Unless the probationer waives the right, the hearing cannot be sooner than 7 days and is generally held within 30 days of receipt of the notice.
Pre-Hearing
Upon presenting the probationer with the notice of violation, the probation officer can ask the judge to hold the probationer in jail until the final surrender. Unlike in a criminal case there is no bail or review of a judge’s decision to hold the probationer on a probation detainer. Unlike in a criminal case plea, the defendant does not have the right to withdraw his/her stipulation if the judge exceeds his/her sentence recommendation.
Stipulations
The probationer and the probation officer may come to an agreement prior to the hearing, where the probationer stipulates to a violation. Both sides may either agree to a proposed disposition or argue for a different disposition. Where there is a stipulation to a probation violation, the judge decides the disposition.
Final Surrender
The judge must decide two separate issues at a final surrender hearing. First, whether the probationer has committed a violation of probation. If the judge does not find a violation, the case will stand as it did before the hearing with no changes. If the judge finds that there is a violation, he/she must then decide what the penalty should or must be.
A final probation surrender could be described as a mini-trial. It is conducted before a judge. The probation officer conducts the hearing for the probation department and may be assisted by the assistant district attorney. The probation officer presents the evidence and may call witnesses, who are under oath, but may not call the probationer to the stand. Both the probationer and the probation officer can present evidence, cross-examine witnesses, and make an argument. To prove a violation, the probation officer must prove the case by a preponderance of the evidence, a lower standard than the one used in criminal cases.
Dispositions
After a full hearing, or in the case of a stipulation, if the judge finds that a violation occurred he/she must make written findings and decide what sanction is appropriate. The judge may: (1) allow probation to stand as before; (2) terminate and discharge; (3) change the terms, conditions, or end date; or (4) revoke probation and place the probationer in jail. If the probation had a suspended sentence and the judge revokes probation, the judge has no discretion in the sentence: the suspended sentence must be imposed. In cases of straight probation, the judge may revoke the probation and sentence the probationer up to the maximum sentence under the law. The timing of the violation is irrelevant, and time served on probation is not considered in a probation surrender.
Experienced Massachusetts Criminal Lawyer
The Law Office of Patrick T. Donovan has represented people on probation in Boston, Quincy, and throughout Massachusetts. Attorney Donovan has handled numerous felony and misdemeanor probation initial surrenders and final surrenders.
A former Assistant District Attorney in the Norfolk County District Attorney’s Office, Patrick Donovan knows the strategies that law enforcement and prosecutors use to obtain a criminal conviction. He uses that experience to his client’s advantage, challenging the Commonwealth’s evidence, examining flawed police procedures, and building the strongest case he can for each client.
Call the Law Office of Patrick T. Donovan at (617) 479-1800 for a free initial consultation.
