District/Municipal Courts Rules for Probation Violation Proceedings  Rule 3: Charged criminal conduct

This rule prescribes the procedures to be undertaken upon the issuance of a criminal complaint against a probationer. 

(i) Issuance and service of notice of violation; termination of proceedings; withdrawal of notice of violation

When a criminal complaint is issued by a court division against a defendant who is the subject of a probation order previously issued by that same court division, the Probation Department shall commence violation proceedings against that probationer. Such proceedings shall be commenced by the issuance by the Probation Department of a Notice of Probation Violation and Hearing at or before the arraignment on the criminal charge, or as soon thereafter as possible. The notice shall be served on the probationer in hand following the assignment of a date and time for a probation violation hearing, as provided in Rule 3(b)(ii), and such service shall be recorded on the case docket, provided that, if such in-hand service is not possible, the notice shall be served on the probationer by first-class mail, unless the court orders otherwise. Service of the notice by first-class mail shall be recorded on the case docket. Out-of-court service other than by mail shall require a written return of service. The Probation Department shall provide a copy of each notice of violation to the District Attorney forthwith upon its issuance. 

At any time during violation proceedings, the court, upon review of the notice of violation and as a matter of its discretion, may order termination of the proceedings. A notice of violation may be withdrawn only with the permission of the court and such withdrawal and. permission shall be set forth on the record and entered on the case docket. 

(ii) Contents of notice of violation

The Notice of Probation Violation and Hearing shall set forth the criminal behavior alleged to have been committed by the probationer as indicated in the criminal complaint, and shall set forth any other conditions of the probation order that the Probation Department alleges have been violated with a description of each such alleged violation. The notice shall also state the date, time, and place of the hearing. 

(iii) Scheduling of hearing

The probation violation hearing shall be scheduled to be commenced on the date of the pretrial hearing for the criminal charge, unless the court expressly orders an earlier hearing. The hearing shall be scheduled for a date certain no less than seven days after service on the probationer of the notice of violation unless the probationer waives the seven-day notice period. The hearing date shall not be later than 30 days after service of the notice of violation, except in extraordinary circumstances. In scheduling the pretrial hearing on the new criminal charge together with the probation violation hearing, the court shall give primary consideration to the need for promptness in conducting the probation violation hearing. 

(i) Issuance and service of notice of violation

When a criminal complaint is issued by a court division (hereinafter the "criminal court") against a defendant who is the subject of a probation order issued by a different division of the same court department (hereinafter a "probation court"), the Probation Department at the criminal court shall issue a Notice of Probation Violation and Hearing to the probationer at or before arraignment on the criminal charge, or as soon thereafter as possible. The notice shall be served on the probationer in hand and such service shall be recorded on the case docket. Nothing in this rule shall preclude the later issuance and service on the probationer of a notice of violation by the Probation Department of a probation court. 

(ii) Contents of notice of violation

The notice of violation shall set forth the name of the court division at which the probationer is on probation and the criminal behavior alleged to have been committed by the probationer as indicated the criminal complaint and shall order the probationer to appear at a specific date and time at the probation court for the express purpose of appointment of counsel, if necessary, and scheduling of a probation violation hearing. 

(iii) Transmission of notice of violation and other documents to probation court

Prior to the service of the notice of violation on the probationer, the Probation Department at the criminal court shall send to the Chief Probation Officer at the probation court, by electronic transmission, copies of the following documents: the notice of violation; the criminal complaint and related police report on the new criminal charge that constitutes the alleged probation violation; and a request for the following information: whether the probation court recommends that the probationer to be transported in custody, and, if not, the date and time for the non-custodial appearance of the probationer at the probation court. 

(iv) Response by the probation court

At the probation court, the Chief Probation Officer, an Assistant Chief Probation Officer, or a probation officer designated by either shall respond by electronic transmission to the request for information no later than one hour from receipt thereof. The response shall include a recommendation on whether the probationer should be transported to the probation court in custody, and, if not, the date and time for the probationer's non-custodial appearance at the probation court. 

(v) The decision to transport

A judge at the criminal court shall decide whether the probationer is to be transported in custody to the probation court. The judge shall provide the probationer an opportunity to be heard and, unless exceptional circumstances require otherwise, shall wait at least one hour for receipt of the recommendation from the probation court before making such decision. If the criminal court orders custodial transport, it shall issue a probation warrant on behalf of the probation court, and the probation court shall be so notified. The probationer promptly shall be transported in accordance with the warrant, provided that, if the probationer is held in custody in the criminal proceeding, the warrant shall be lodged with custodial authority to ensure that the probationer will be detained and transported to the probation court. The Probation Department at the criminal court shall so notify the Probation Department at the probation court. 

If the criminal court decides not to order custodial transport, it shall enter the probation court appearance date and other required information on the notice of violation and serve it on the probationer in accordance with Rule 3(c)(i). For good cause, the criminal court may hold the probationer in custody pending its decision regarding custodial transport. Nothing in this rule shall preclude the issuance of a probation warrant by the probation court to secure the appearance of a probationer for a probation violation proceeding. 

(vi) Probationer's appearance at probation court; service of a new notice

Upon appearance of the probationer at the probation court, that court shall appoint counsel, if necessary, and shall schedule a probation violation hearing for a date certain, the date to be no less than seven days later unless the defendant waives the seven-day period. The hearing date shall not be later than 30 days after the appearance, except in extraordinary circumstances. If the probation department at the probation court alleges additional violations, it shall. prepare and serve on the probationer a new notice of violation which shall set forth all alleged violations. A new notice of violation shall also include the date, time, and place of the violation hearing, and shall be served on the probationer in hand while the probationer is before the court, or as soon thereafter as possible. Such service shall be recorded on the case docket. The Probation Department shall provide a copy of the notice of violation to the District Attorney at the time of, or before, such service on the probationer. At any time during the proceedings, the probation court, upon review of the notice of violation and as a matter of its discretion, may order termination of the proceedings. A notice of violation may be withdrawn only with the permission of the court and such withdrawal and permission shall be set forth on the record and entered on the case docket. 

(vii) Procedure when a defendant is a probationer at more than one other court division within the same court department

When a defendant appearing in a court division on a new criminal charge is on probation at more than one other court division within the same court department, the criminal court shall select one of the latter divisions to be the probation court and shall issue a notice of violation for that division. The criminal court shall interact as provided in this rule with the selected probation court. The other probation court or courts each shall be responsible for the issuance and service on the probationer of a notice of violation based on the new criminal charge, and for securing the presence of the probationer for a violation hearing by means of such notice or by means of a warrant or other process. 

(viii) Unified proceedings permitted by standing order

Each department may provide, by standing order, for the hearing of probation violation matters pending in any of the several divisions of that department at any one division.

When a criminal complaint is issued by a court against a defendant who is the subject of a probation order issued by a court in a different court department, the Probation Department at the criminal court shall notify the Probation Department at the probation court of the new complaint as soon as may be done, but in any event prior to the new matter being heard in the criminal court.

(2015)

This rule involves cases in which an alleged probation violation consists of a new criminal charge against the probationer. Such cases can arise in two contexts: where the probationer is on probation at the same court division that issued the new criminal complaint (the "same court" situation), and where the criminal complaint was issued by a court division or department other than the one where the probationer is on probation (the "different court" situation). 

For both situations, this rule contains a provision not included in the 2000 District Court Rules by which a Notice of Probation Violation and Hearing may be "withdrawn." Such withdrawals have been a method by which probation violation proceedings maybe terminated. Withdrawal has been held to be within the discretion of a Probation Department. Commonwealth v. Milton, 427 Mass. 18, 21 (1998). There has been no requirement for court approval or permission. The new provision imposes two new requirements: (1) that such withdrawals must receive the permission of the court, and (2) that such permission and the fact of the withdrawal must be entered on the case docket. By requiring judicial permission and entry on the record, the new provision reflects the importance of a process by which a probation violation proceeding that has been formally commenced may be terminated without adjudication. 

The new provision regarding withdrawal appears both in section (b)(i) (for the "same court" situation) and in section (c)(vi) (for the "different court" situation). Sections (b)(i) and (c)(vi) also now make clear that the Probation Department is responsible for providing a copy of the notice of violation to the District Attorney. 

The last paragraph of section (b)(i) continues to authorize the termination of a probation violation proceeding as a matter of judicial discretion, on the court's own initiative or otherwise. The reference to such termination occurring "at arraignment" has been deleted because such termination may be ordered at any stage of the proceeding. A similar provision has been added to section (c)(vi) to address the "different court" situation. 

New subsections (iii) - (v) have been added to section (c) of the rule that did not appear in the 2000 District Court Rule. Former section (iii) from the 2000 District Court Rule has been retained, but renumbered section (vi). See below. The purpose of the three new subsections is to provide a detailed process by which, in the "different court" situation, the "criminal court" must interact with the "probation court." The purpose of this interaction is to effect the transfer of the probation proceeding and, in some instances, the custodial transfer of the probationer, to the probation court. 

Section (c)(iii) specifies the documents that must be sent by the criminal court to the probation court, including the request that the probation court make a recommendation on whether the probationer should be transported in custody. This section also provides that the criminal court may hold the probationer in custody pending this decision. This is important because, if not held on bail on the new criminal charge, the probationer may be otherwise free to leave the court. Such a departure would render moot the process of determining custody in the different-court situation. The legal bases for temporary custody of a probationer for good cause are set forth in the Commentary to Rule 6(h). 

Section (c)(iv) describes the response required of the probation court to the criminal court. This response, including the recommendation regarding transport, is the responsibility of the Chief Probation Officer, an Assistant Chief Probation Officer, or a designated probation officer of the probation court and must be transmitted to the criminal court within one hour after receipt of the criminal court's request for information. 

Section (c)(v) provides that the judge at the criminal court is responsible for the decision on whether the probationer will be transported to the probation court. The judge must give the probationer an opportunity to be heard and is not bound by the probation court's recommendation. The probation officer must provide the criminal court with a recommendation within one hour, and the judge must wait for that recommendation, absent exceptional circumstances. If a recommendation is not received within that hour, the judge at the criminal court may, but need not, wait longer before deciding whether to transport. If the decision is made to transport the probationer, the court will issue a probation warrant on behalf of the probation court. It is not necessary for the probation court to take any action in this regard. For this decision, the judge, for jurisdictional purposes, will be sitting at a session of the probation court held at the location of the criminal court, by designation of the Chief Justice of the relevant department under G.L. c. 211B, § 10 and G.L. c. 218, § 43A . 

Under the former procedure, the decision to transport a probationer was to be made at the probation court and a warrant issued there and sent to the criminal court. This meant that a probation officer had to seek the issuance of a warrant by a judge of that court, a judge who was otherwise unaware of the matter and was usually engaged in that court's daily business. This would often delay the process, particularly in those cases where the judge at the probation court required a more detailed description of the underlying allegations before issuing the warrant. 

This rule has been changed because the judge in the criminal court is in a superior position, both substantively and practically, to make the transport decision. That judge will be addressing an issue in a case that is before the court at that time, will be immediately aware of the criminal case which constitutes the alleged probation violation, and will have all relevant information regarding the probationer's criminal record and pending probation status. 

Section (c)(vi) of the rule, corresponding to section (c)(iii) of the 2000 District Court Rule, has been amended to clarify and simplify the requirement that, if the probation court wishes to allege additional probation violations, it must issue and serve a new notice of violation. 

Section (c)(vii) has been added to address a circumstance that the rules did not previously address, namely, where the defendant before the criminal court is currently on probation in more than one other court division within the same court department. It provides that in such cases the judge at the criminal court must decide the probation court with which the criminal court will interact. This decision will determine which of the probation courts will be "first in line" to address the probationer's alleged violation based on the new criminal charge. The rule provides that the other courts at which the individual is on probation are responsible for charging the new crime as an alleged violation, and initiating a violation proceeding by issuing a notice of violation and mailing it to the probationer or obtaining the appearance of the probationer by means of a probation warrant or other process such as a writ of habeas corpus. 

Section (c)(viii) has been added to acknowledge the practice in Boston Municipal Court of allowing probation violation matters in several different divisions to be adjudicated in a single division. Each department may, by standing order, authorize and regulate such practices as will promote the orderly dispatch of probation matters in its department. 

Section (d) addresses the circumstance where a defendant is on probation in one department (for example, the District Court or the Superior Court) and is arrested in another department (for example, the Boston Municipal Court). In such circumstances, the Probation Department in the criminal court must notify the Probation Department in the probation court as soon as possible and always before the case is heard in the criminal court. Such notification should ordinarily occur as soon as the Probation Department becomes aware that the defendant is on probation. Although the criminal court lacks the authority to issue a notice of violation or warrant for the probation court, the Probation Departments should coordinate, especially if the Probation Department in the probation court wishes to issue a warrant under G.L. c. 279, § 3. 

(2000)

This rule sets forth procedures for a specific circumstance, namely, where a probationer is charged with a crime by the issuance of a criminal complaint. It is based on the premise that when a formal criminal charge is issued against a person on probation, this constitutes a basis for an alleged violation of the first general condition of every probation order (that the probationer must obey all local, state and federal laws) and the court must address such an alleged violation.

Note that it makes no difference whether the criminal complaint was issued after an arrest, or after a hearing on a criminal complaint application with no arrest having occurred. Note also that the rule does not apply to alleged criminal conduct that has not yet resulted in a criminal complaint. Probation violation proceedings based on alleged criminal conduct where no criminal complaint has yet issued are governed by Rule 4.

Commencement of Proceedings in Every Case

The rule requires the commencement of a probation violation proceeding in every case where a criminal complaint is issued against a probationer. No attempt is made to discriminate between those criminal charges that are "serious enough" to warrant violation proceedings and those that are not. The charge of a crime against a person who has been given the benefit of probation is serious enough per se to require action by the Probation Department. If the violation is found to have occurred, it is important to document that finding. The seriousness of the violation is properly addressed by the court's dispositional discretion, which is extremely flexible: a serious violation may result in revocation; a minor violation may result in simply a warning. See Rule 7(d). Nor must an alleged minor violation require protracted proceedings. In appropriate cases, the defendant may admit to the probation violation resulting in a simple continuance of the current probation terms and consent to a disposition at arraignment on the new charge. Of course, a defendant's rights to oppose any alleged violation and to demand trial on any criminal charge remain inviolate.

Whenever a new crime is charged, commencement of probation violation proceedings may not be delayed solely to await the conclusion of the new criminal case. Rules 5(e) and 7(a) similarly preclude such "tracking" of the new criminal case as a basis for delaying the conduct and conclusion of probation violation proceedings. The commentary to Rules 5(e) provides the rationale for the requirement. Continuances are available on specific grounds under Rules 5(e).

Where the court "treats" a criminal charge as a civil infraction, as provided by G.L. c. 277, s. 70C, the rule requiring the initiation of probation proceedings does not apply since the criminal charge, as such, can be considered no longer to exist. However, the underlying alleged behavior may constitute a violation of probation subject to possible violation proceedings under Rule 4.

Judicial Discretion to Terminate Proceedings After Commencement

It should be noted that the rule acknowledges the court's discretion to terminate a proceeding once it has been commenced. That is, the rule provides that proceedings are commenced "by the issuance by the Probation Department of a Notice of Probation Violation and Hearing at or before arraignment on the criminal charge." Usually such "issuance" will consist of the probation officer tendering the notice form to the court before the arraignment begins. (The notice will not be formally served on the probationer until and unless a hearing date is determined and recorded on the form.) At that time the judge is free as a matter of discretion to order that the proceedings be terminated. Such an order must be entered on the probation record and on the docket of the case in which probation was ordered to ensure accountability. While alleged probation violations based on new criminal charges, even minor ones, generally should proceed to a factual conclusion to vindicate the credibility of probation and to establish a proper record, there may be circumstances where, in the opinion of the court, the violation proceedings should be terminated at the outset.

Where the court at which the probationer is on probation is different from the court where the new criminal charge is brought, the judicial authority to order no further proceedings resides at the former court, and section (c) (iii) so states.

Same Court

There are two different circumstances in which proceedings under the rule can arise: where the criminal complaint is issued (1) by the same court that issued the probation order, or (2) by a different court. These situations are addressed separately in sections (b) and (c).

Section (b), the "same court" circumstance, requires the probationer to be served in hand with the Notice of Probation Violation and Hearing when he or she appears before the court for arraignment whenever possible. This requires administrative attention by the Probation Department at each court so as to ensure each day that all new arrestees and others appearing for arraignment are screened for probation status. Notices for all those who are on probation must be prepared for in-court service. Where necessary, these defendants can be scheduled last for arraignment to ensure preparation of the Notice and in-hand service. The issuance of the Notice constitutes "commencement" of action by the Probation Department. The prepared Notice should include any other violations that can properly be alleged in addition to the charged criminal conduct. For example, a probationer charged with a new crime may also have a history of failure to report as ordered. The date, time and place of the violation hearing should be left blank, to be recorded on the form when the hearing is scheduled along with the pretrial hearing on the criminal charge, as required in section (b)(iii). After this information is added, the Notice is to be served in hand on the probationer.

If the probationer defaults at arraignment, the Notice can be prepared and left in the case file.

When the court fails to make in-hand service at arraignment, the rule provides for other methods of service. In such cases, the goal should be to schedule the hearing on the same date as the pretrial hearing on the criminal charge, assuming this will not violate the seven-day minimum notice requirement.

There is no requirement that counsel in the original criminal case represent the probationer at the violation hearing. On the contrary, if appointment of counsel is required, it is appropriate to appoint the same attorney for the violation hearing and for the new criminal charge that also constitutes the alleged probation violation.

Different Courts

Section (c) of the rule addresses the circumstance where a person against whom a criminal complaint has issued is on probation in a different court. Under section (c)(i) the Probation Department of the court that issued the complaint must prepare and serve a Notice of Probation Violation and Hearing on the probationer in hand at arraignment, just as in the "same-court" situation. However, in addition to specifying the alleged violation, the Notice will order the probationer to appear on a date certain at the court where he or she is on probation. The purposes of that appearance will be to appoint counsel and schedule the violation hearing. The Probation Department of the court where the defendant is on probation may amend the notice to include additional violation allegations. Presumably the court where the probationer is on probation will schedule a prompt hearing date, consistent with the seven-day minimum notice period for the probationer. (See below.).

The requirement that copies of the Notice, criminal complaint and police report be sent "forthwith" to the probation court is most effectively satisfied by the use of facsimile ("fax") transmission.

Scheduling

Notice of the probation violation hearing "must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded." Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674, 676 (1986), quoting In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446 (1967). The rule provides a minimum of seven days notice in both the same-court and different-court situations. This is the minimum notice period previously provided by regulations of the Office of the Commissioner of Probation and should be minimally adequate in most cases given the narrow focus of these hearings. If either party desires more time than is allowed by the scheduled date, a continuance may be sought under Rule 5(e).

The rule also provides that the hearing may not be scheduled for a date more than 30 days after service of the Notice if the probationer objects to such date. This is to protect the probationer from undue delay, which is a particular concern if the probationer is being held in probation detention. Finally, the rule provides that even if the hearing date is beyond the 30-day limit and the probationer objects, such delay may nonetheless be justified on the basis of "extraordinary circumstances.".

The purpose of requiring the probation violation hearing to be scheduled along with the pretrial hearing on the new criminal case in the same-court situation (section (b)(iii)) is not only to avoid delay of the probation hearing, but also to create an opportunity for a disposition of the criminal case that takes into account the probation disposition. Most criminal cases, in fact, are disposed of by plea or admission. It is appropriate to provide the defendant an opportunity to consider whether to submit a plea or admission that may take into account the outcome of the probation violation hearing. The defendant's right to a trial on the new criminal charge remains unaffected.

The last sentence of section (b)(iii) is intended to indicate that the prompt scheduling of the probation violation hearing should drive the scheduling of the pretrial hearing on the new charge. Thus, in a court in which the next regularly available date for a pretrial hearing is not consistent with the need for a prompt hearing on the alleged probation violation in terms of public safety implications, a prompt date (even a minimum seven-day date where appropriate) should be given even if this means scheduling the pretrial hearing on the new criminal charge prior to the date it would otherwise receive.

In the different-court situation, the date of the Pretrial Hearing on the criminal charge should be indicated on the copy of the Notice sent to the probation court. This will allow the probation court to schedule the violation hearing before that date.

Under G.L. c. 258B, s. 3(o), victims have a right to be notified by a probationer's supervising probation officer if a probationer "seeks to modify a restitution order." This does not appear to require a supervising probation officer to send a copy of the Notice of Probation Violation and Hearing to a victim, even if modification of a restitution order is a possible outcome of the hearing.

Notice to District Attorney

In both the same-court and the different-court situations, the rule requires that a copy of the Notice of Probation Violation and Hearing be provided to the District Attorney. The relevant law, G.L. c. 279, s. 3, gives the District Attorney the right to receive a copy of the notice and appear at such hearings only where the original conviction for which the probationer is on probation involves at least one felony. However, the rule reflects the position that the District Attorney should be allowed to appear at all such hearings. It allows the District Attorney to decide which hearings to attend and provides as an alternative the submission of a written statement. (Rule 5(f)) This is appropriate, given the fact that some misdemeanor charges may have greater public safety implications than felony charges, e.g., drunk driving, domestic assault and battery and violation of restraining orders. Also, the District Attorney has certain obligations to victims of crime regarding probation violation hearings that can be met only if the District Attorney is informed of the scheduling of such hearings. G.L. c. 258B, s. 3. See Rule 5(f) and related commentary.

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