In North Dakota, most offenders who are convicted of a crime end up on some sort of probation as part of their sentence. Probation is a way for the Court to reserve jurisdiction to make sure a person follows certain rules for a designated time. The person is not in jail during the probationary period but remains under community supervision. If the person does not follow the rules, the State can bring the person back in front of the judge for additional punishment.
There are two major types of probation—unsupervised and supervised probation.
Unsupervised probation is typically used in low-level misdemeanor offenses. Up until a few years ago, the law did not authorize a judge to impose unsupervised probation on a felony level offense. In unsupervised probation cases, the defendant does not have to report to a probation officer. Typically, the conditions of unsupervised probation include an order to remain law abiding, pay court fees, and sometimes an order to get an evaluation or do some community service. On occasion, the judge will also order those special conditions to be monitored by a nonprofit monitoring agency like RESTORE Inc. in Fargo. Those monitoring agencies charge a small fee, usually between $50.00 and $100.00, and operate much like a hall monitor. They tell the Court if you did or did not do what you were ordered to do.
Unlike unsupervised probation, a person placed on supervised probation is usually subject to many more restrictions in their lives. In Cass County, for instance, the typical conditions of supervised probation include 24 standard conditions, starting with an order to remain law abiding, but also orders prohibiting consumption of alcohol, to submit to chemical testing at any time, an order allowing law enforcement to search the person without a warrant, to prohibit the person from leaving North Dakota without advanced permission from the probation officer, report to the probation officer as directed (usually at least once a month), keep the probation officer informed of changes to the person’s address, phone number, and other pertinent information, and pay a $55.00 per month supervision fee.
When a person is ordered onto supervised probation, they typically are ordered to report to probation within 24 hours. The probation office sets up an intake meeting with the person where the rules are explained in detail to the person, and the probation officer gathers information about what “criminogenic factors” need to be addressed to reduce the likelihood the person will commit a crime in the future.
A probation revocation proceeding happens when a person does not follow the rules of either supervised or unsupervised probation. In cases involving unsupervised probation, the revocation hearing is called an “Order to Show Cause hearing,” where the person is brought before the judge to explain why he or she should not have their probation revoked. In cases involving supervised probation, the probation officer files a “petition to revoke probation,” where the probation officer outlines specific allegations against the person concerning how they failed to comply with the terms of probation.
The legal process for a probation revocation proceeding is not anything like the original criminal proceedings. Revocation proceedings are often described as being “civil” in nature. As such, the person’s rights are much more limited than in criminal cases. A person facing revocation does not get to plead “guilty” or “not guilty,” and there is no “trial.” The probationer will be called upon to either “admit” or “deny” the allegations in the petition to revoke probation or order to show cause document. If the person denies an allegation, he is essentially asking for an evidentiary hearing on that allegation. In that situation, the State has the option to either dismiss the allegation and proceed on other allegations that were admitted, or the State can move forward with the evidentiary hearing.
At the evidentiary hearing, the biggest difference between a probation revocation hearing and a criminal trial is the burden of proof. Instead of proving each and every element of the crime beyond a reasonable doubt to a jury, the State must only prove the allegations by a mere preponderance of the evidence to the Court. That is, the State must only prove that it is more likely than not that the person willfully violated a term of probation. There is no right to a jury in a revocation case. The hearing takes place right then and there. The rules of evidence do not apply. As a result, hearsay evidence is admissible. The probationer has the right to testify or not testify. The probationer can also call other witnesses if those witnesses can provide information relevant to the allegations against the person. Usually, the State will only call the probation officer or representative of the monitoring agency, who will testify to his or her name, position, relationship to the probationer, and basic facts about the allegations. If there are any documents confirming the allegations in the petition, those documents will normally be introduced through the probation officer. Of course, the defense has the right to cross-examine any witnesses the State calls to testify.
There are four options for the Court at a revocation hearing:
(1) The judge can say there is no willful violation of conditions of probation warranting revocation of a person’s probation.
(2) The judge can say there is a willful violation, but it is a “de minimis violation” not warranting revocation.
(3) The judge can terminate probation or modify the conditions of probation.
(4) Lastly, the judge can find a willful violation of at least one condition of probation and impose whatever punishment up to the maximum sentence that could have been imposed at the original sentencing. That means if the person was convicted of a class C felony offense, the judge can resentence the person up to 5 years regardless of whatever sentence was imposed or suspended in the original sentence. This is different than in Minnesota and often a major point of confusion. Yes, the Court can resentence the person up to the maximum sentence, although that usually is not what happens. If the judge decides to revoke and resentence, the probationer is given credit for any time previously served in custody.
Relatively speaking, in my opinion, the worst thing you can do is commit any other crime while on probation, and the second worst thing you can do is to walk away from your probation, which they call “absconding” from probation.
Unfortunately, there is little to no plea bargaining in a revocation proceeding. The probation officer often will simply recommend that the suspended portion of the prior sentence be imposed. Again, the Court can give you up to the maximum allowed by law, even if that would exceed the suspended portion of your original sentence. The Court may or may not follow the recommendations the probation officer makes or that defense lawyers make. The judges are relatively independent when they make these decisions. I have had judges sentence some clients to something more favorable than what I have recommended. It is their sentence they are dealing with, and it is entirely up to them to fashion the outcome.
This is where having an experienced criminal defense attorney on your side can make a big difference. Fremstad Law attorney Nick Thornton has handled hundreds of probation revocation files, often arguing for much different outcomes than what the State or probation officer is recommending. If you are facing a probation revocation or an order to show cause, call Nick Thornton now at (701) 478-7620 or email him at firstname.lastname@example.org today. To find out more about attorney Nick Thornton, follow this link https://www.fremstadlaw.com/attorneys/nick-thornton/.
© 2019 Fremstad Law