District/Municipal Courts Rules for Probation Violation Proceedings  Rule 4: Commencement of violation proceedings: Violations other than a new criminal complaint

This rule prescribes the procedures to be undertaken regarding alleged violations of probation that do not involve or include criminal conduct charged in a criminal complaint. 

When a probation officer of a court that has issued a probation order determines that a probationer has violated any condition of that order other than the alleged commission of a crime as charged in a criminal complaint, that probation officer shall decide whether to commence probation violation proceedings. Such decision shall be made in accordance with the rules and regulations of the Office of the Commissioner of Probation, provided, however, that probation violation proceedings shall be commenced (1) upon the issuance of an indictment, (2) when the judge issuing the probation order orders that such proceedings are to be commenced upon an alleged violation of one or more conditions of probation, or (3) when the commencement of such proceedings is required by statutory mandate. In any case, a judge of the court may order the commencement of violation proceedings. 

Violation proceedings shall be commenced by the issuance by the Probation Department of a Notice of Probation Violation and Hearing, which shall be served on the probationer in hand or by first-class mail, unless the court orders otherwise. Service of the notice in hand or by first-class mail shall be noted in the court record. Out-of-court service other than by first-class 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. 

If deemed appropriate, because of the seriousness of the alleged violation or for other good reason, the court may issue a violation of probation warrant. The clerk shall forthwith enter such warrant in the warrant management system. Upon the probationer's first appearance before the court, the probationer shall be served in hand with the notice of violation. 

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 A notice of violation may be withdrawn only with the permission of the court and such withdrawal and permission shall be set forth on the record and entered on the case docket. 

The Notice of Probation Violation and Hearing shall set forth the conditions of the probation order that the Probation Department alleges have been violated and shall order the probationer to appear at a specific date and time for the express purpose of the appointment of counsel, if necessary, and the scheduling of a probation violation hearing. 

Upon appearance of the probationer in accordance with the Notice required by Rule 4(c), the court shall appoint counsel, if necessary, and schedule a probation violation hearing for a date certain, the date to be no less than seven days later unless the probationer waives the seven-day notice period. The hearing date shall not be later than 30 days after the appearance, except in extraordinary circumstances.

(2015)

Section (b) differs from the 2000 District Court Rule in the addition of the last paragraph, which is identical to the last paragraph of Rule 3(b)(i) and (c)(vi). This paragraph refers to the authority of the court to terminate a violation proceeding and adds new requirements governing the withdrawal of a notice of violation by the Probation Department. This paragraph has been added to ensure that the same provisions that apply to violation proceedings involving charged criminal conduct (the subject of Rule 3), also apply to proceedings covered by Rule 4, i.e., proceedings that do not involve a new criminal complaint. The purpose of the new provisions governing the withdrawal of a notice of violation are discussed in the Commentary to the Rule 3 amendments. 

Section (b) also makes clear that the Probation Department is responsible for providing a copy of the notice of violation to the District Attorney. 

Section (b) specifies that the judge may issue a violation of probation warrant if the seriousness of the alleged violation or other good reason makes that advisable. For example, a probationer convicted of a sex crime may remove a global positioning system bracelet, demanding immediate action despite the absence of a new crime. Nothing in this grant of authority detracts from the statutory power of a probation officer to issue a violation of probation warrant without court approval under G.L. c. 279, § 3. The careful exercise of that power is essential to effective and efficient probation supervision. 

The title of section (b) differs from the 2000 District Court Rule in referring to the two new topics that have been added to that section.

(2000)

This rule provides the procedures to be followed when it is alleged that a probationer has violated any probation conditions that do not include criminal behavior as alleged in a criminal complaint, that is, any violation not governed by Rule 3. This includes allegations of criminal acts that are not the subject of a criminal complaint, allegations of a crime set forth in an indictment, any alleged violation of general probation conditions 2 (to report to the probation officer as required), 3 (to notify the probation officer of any change of employment or address) or 4 (to obtain permission to leave the Commonwealth), and any alleged violation of any special condition of probation.

Section (b) of the rule defers to the Rules and Regulations of the Office of the Commissioner of Probation (OCP) regarding the commencement of such proceedings. Unlike charged criminal acts, it is appropriate that other alleged violations be the subject of violation proceedings only in accordance with professional probation policies and standards. These policies provide an appropriate degree of discretion and also provide a procedure for administrative proceedings where the alleged violation does not warrant the commencement of court proceedings. Such policies require collaboration with the Presiding Justice at each court. Notwithstanding a probation officer's decision, in accordance with Probation Department regulations, not to commence proceedings in a particular case, a judge may order such proceedings to be commenced.

There are three exceptions to the reliance on OCP regulations and policies under section (b). The first requires commencement of proceedings upon the issuance of an indictment. The rationale for this is the same as for the required commencement of proceedings upon the issuance of a criminal complaint. See commentary to Rule 3. The second allows the sentencing judge to require in the probation order that upon certain alleged violations, a probation violation hearing must be commenced. The third exception is that a violation hearing must be commenced if required by law. Perhaps the most notable example of the last is G.L. c. 209A, s. 7, which provides as follows:

"If the defendant ordered to undergo treatment [after being convicted of a violation of a restraining order issued under G.L. c. 209A ] has received a suspended sentence, the original sentence shall be reimposed if the defendant fails to participate in said program as required by the terms of his probation".

The statute would appear to require that probation violation proceedings be commenced upon an allegation of such a violation, and that revocation be ordered if the violation is found.

The rationale for providing a copy of each Notice of Probation Violation and Hearing to the District Attorney is the same as for notices in proceedings under Rule 3. It allows the District Attorney to decide which hearings to appear at and permits the District Attorney to fulfill certain legal obligations to victims and witnesses involved in the original criminal case in which the probation order was issued. See Rule 5(f) and related commentary.

Sections (c) and (d) provide for notice to the probationer of the alleged violation and ordering him or her to appear in court on a specific date and time so that the issue of counsel may be addressed and the violation hearing scheduled. The minimum notice period for the hearing is seven days, unless waived.

In cases where custody of a probationer is warranted pending the hearing, the probationer may be arrested with or without a warrant pursuant to G.L. c. 279, s. 3 , and held if probable cause is found at a preliminary violation hearing following the arrest. See Rule 8.

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