(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 one or more conditions of probation 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) Termination of Probation. The court may terminate the order of probation and the continuance without a finding and enter a dismissal on the underlying criminal case. 

(ii) Continuation of the Continuance Without a Finding With No Probation Modification. The court may continue the continuance without a finding and issue to the probationer such admonition or instruction as it may deem appropriate. 

(iii) Continuation of the Continuance Without a Finding With Modification of Probation. The court may continue the continuance without a finding and modify the conditions of probation including the duration of the continuance. 

(iv) Termination of the Continuance Without a Finding and No Revocation of Probation. The court may terminate the continuance without a finding without revoking probation and, if a finding of sufficient facts was entered at the time the continuance without a finding was ordered, shall proceed to enter a guilty finding. The order of probation, with or without modifications, may thereupon constitute the disposition on the guilty finding if the probationer consents. 

(v) Termination of the Continuance Without a Finding and Revocation of Probation. The court may terminate the continuance without a finding and revoke the order of probation. If the court orders revocation, it shall state the evidence relied upon in writing, and, if a finding of sufficient facts was entered at the time the continuance without a finding was ordered, the court shall enter a guilty finding and impose. a sentence or other disposition as provided by law.

Commentary

(2015)

The order of sections (b)(i) and (b)(ii) differs the 2000 District Rule to more accurately reflect the increasingly severe "hierarchy" of this list of dispositional options. Other, minor changes exist as well. 

Section (b)(iii) reflects the fact that, where a probation order is modified after a finding of violation, there is no need to mention in the rule that a "material change of circumstance" is a prerequisite to such modification. This is so because a violation of probation constitutes per se sufficient grounds for a modification. See Buckley v. Quincy Div. of the Dist. Ct. Dept, 395 Mass. 815 , 820 (1985). 

New section (b)(iv) has been added to acknowledge the court's option of terminating a CWOF, but not revoking probation. In such cases, the court, if a finding of sufficient facts had been made at the time the CWOF was ordered, may enter a guilty finding with the probation order, with or without modification, serving as the criminal sentence. 

Section (b)(v) is based on the 2000 District Court Rule 9(b)(iv) and includes the requirement that when the court orders a revocation of probation it must state in writing the evidence relied upon. This has been held to be a requirement of fundamental due process. Morrissey v. Brewer, 408 U.S. 471 , 488-89 (1972) (due process requirements for parole revocation hearings); accord Gagnon v. Scarpelli, 411 U.S. 778 , 782 (1973) (same due process rights apply in probation revocation hearings). 

Section (b)(v) also indicates that, if a violation of probation is found in the context of a continuance without a finding and probation is then revoked, the entry of a guilty finding and sentencing in the underlying case is possible only if the court that ordered the CWOF had entered a finding of sufficient facts.

Section (b)(v) also reflects the addition of a reference to the court's obligation to "impose a sentence or other disposition as provided by law" when it finds a violation and orders revocation in the context of a CWOF. This phrase formerly appeared in 2000 District Court Rule 9(d), which has been deleted, as explained below. 

Section (c) of the 2000 District Court Rule has been deleted. It limited stays of execution following the imposition of sentence upon revocation of probation and entry of a guilty finding. The only stays permitted by the rule were those provided by rule (stay pending appeal, Mass. R. Crim. P. 31) and stays to allow a defendant to attend to personal matters prior to commencement of an incarceration sentence, as provided under common law. It was concluded that, since there is no other legal ground for such stays, the express limitation in the rule was unnecessary. 

Section (d) of the 2000 District Court Rule has also been deleted. It involved admissions to sufficient facts seeking a CWOF tendered by defendants and accepted by the court with no sentencing conditions included in the tender. In such cases, the court that later revokes probation is free to impose any sentence provided by law. The implication in this provision was that, if sentencing terms had been included with the tender, the court that later found a violation of the CWOF and revoked probation would be limited to imposing a sentence consistent with the terms set forth in the tender. It was concluded that this provision was unnecessary because such conditioned tenders seeking CWOFs are, in fact, not made, or, if made, are not accepted by the courts. In any event, Rule 9(b)(v) adequately addresses the issue in general terms: when the court terminates a CWOF and revokes probation, "the court must impose a sentence or other disposition as provided by law." (Emphasis added.) This obviates the need for these rules to resolve the question of whether the tender of a plea or admission seeking a CWOF may be conditioned on specific sentencing terms, and, if accepted by the sentencing court, whether such sentencing terms are "binding" on the court that subsequently revokes probation and terminates the CWOF.

(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.

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