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Probation

Criminal Defense Attorney in Kansas City

probationBeginning January 1, 2017–Eligible for probation, when.

559.012. The court may place a person on probation for a specific period upon conviction of any offense or upon suspending imposition of sentence if, having regard to the nature and circumstances of the offense and to the history and character of the defendant, the court is of the opinion that:

(1) Institutional confinement of the defendant is not necessary for the protection of the public; and

(2) The defendant is in need of guidance, training or other assistance which, in his or her case, can be effectively administered through probation supervision.

Terms of probation–extension.

559.016. 1. Unless terminated as provided in section 559.036 or modified under section 217.703, the terms during which each probation shall remain conditional and be subject to revocation are:

(1) A term of years not less than one year and not to exceed five years for a felony;

(2) A term not less than six months and not to exceed two years for a misdemeanor;

(3) A term not less than six months and not to exceed one year for an infraction.

2. The court shall designate a specific term of probation at the time of sentencing or at the time of suspension of imposition of sentence. Such term may be modified by the division of probation and parole under section 217.703.

3. The court may extend a period of probation, however, no more than one extension of any probation may be ordered except that the court may extend the total time on probation by one additional year by order of the court if the defendant admits he or she has violated the conditions of his or her probation or is found by the court to have violated the conditions of his or her probation. Total time on any probation term, including any extension, shall not exceed the maximum term as established in subsection 1 of this section plus one additional year if the defendant admits or the court finds that the defendant has violated the conditions of his or her probation.

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Beginning January 1, 2017–Conditions of probation–compensation of victims–free work, public or charitable–defendant not an employee for workers’ compensation purposes–payment to county restitution fund, when.

 

559.021. 1. The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the defendant will not again violate the law. When a defendant is placed on probation he or she shall be given a certificate explicitly stating the conditions on which he or she is being released.

2. In addition to such other authority as exists to order conditions of probation, the court may order such conditions as the court believes will serve to compensate the victim, any dependent of the victim, any statutorily created fund for costs incurred as a result of the offender’s actions, or society. Such conditions may include restorative justice methods pursuant to section 217.777, or any other method that the court finds just or appropriate including, but not limited to:

(1) Restitution to the victim or any dependent of the victim, or statutorily created fund for costs incurred as a result of the offender’s actions in an amount to be determined by the judge;

(2) The performance of a designated amount of free work for a public or charitable purpose, or purposes, as determined by the judge;

(3) Offender treatment programs;

(4) Work release programs in local facilities; and

(5) Community-based residential and nonresidential programs.

3. The defendant may refuse probation conditioned on the performance of free work. If he or she does so, the court shall decide the extent or duration of sentence or other disposition to be imposed and render judgment accordingly. Any county, city, person, organization, or agency, or employee of a county, city, organization or agency charged with the supervision of such free work or who benefits from its performance shall be immune from any suit by the defendant or any person deriving a cause of action from him or her if such cause of action arises from such supervision of performance, except for an intentional tort or gross negligence. The services performed by the defendant shall not be deemed employment within the meaning of the provisions of chapter 288. A defendant performing services pursuant to this section shall not be deemed an employee within the meaning of the provisions of chapter 287.

4. In addition to such other authority as exists to order conditions of probation, in the case of a finding of guilt, the court may order the assessment and payment of a designated amount of restitution to a county law enforcement restitution fund established by the county commission pursuant to section 50.565. Such contribution shall not exceed three hundred dollars for any charged offense. Any restitution moneys deposited into the county law enforcement restitution fund pursuant to this section shall only be expended pursuant to the provisions of section 50.565.

5. A judge may order payment to a restitution fund only if such fund had been created by ordinance or resolution of a county of the state of Missouri prior to sentencing. A judge shall not have any direct supervisory authority or administrative control over any fund to which the judge is ordering a defendant to make payment.

6. A defendant who fails to make a payment to a county law enforcement restitution fund may not have his or her probation revoked solely for failing to make such payment unless the judge, after evidentiary hearing, makes a finding supported by a preponderance of the evidence that the defendant either willfully refused to make the payment or that the defendant willfully, intentionally, and purposefully failed to make sufficient bona fide efforts to acquire the resources to pay.

7. The court may modify or enlarge the conditions of probation at any time prior to the expiration or termination of the probation term.

Beginning January 1, 2017–Duration of probation–revocation.

559.036. 1. A term of probation commences on the day it is imposed. Multiple terms of Missouri probation, whether imposed at the same time or at different times, shall run concurrently. Terms of probation shall also run concurrently with any federal or other state jail, prison, probation or parole term for another offense to which the defendant is or becomes subject during the period, unless otherwise specified by the Missouri court.

2. The court may terminate a period of probation and discharge the defendant at any time before completion of the specific term fixed under section 559.016 if warranted by the conduct of the defendant and the ends of justice. The court may extend the term of the probation, but no more than one extension of any probation may be ordered except that the court may extend the term of probation by one additional year by order of the court if the defendant admits he or she has violated the conditions of probation or is found by the court to have violated the conditions of his or her probation. Total time on any probation term, including any extension shall not exceed the maximum term established in section 559.016. Procedures for termination, discharge and extension may be established by rule of court.

3. If the defendant violates a condition of probation at any time prior to the expiration or termination of the probation term, the court may continue him or her on the existing conditions, with or without modifying or enlarging the conditions or extending the term.

4. (1) Unless the defendant consents to the revocation of probation, if a continuation, modification, enlargement or extension is not appropriate under this section, the court shall order placement of the offender in one of the department of corrections’ one hundred twenty-day programs so long as:

(a) The underlying offense for the probation is a class D or E felony or an offense listed in chapter 579 or an offense previously listed in chapter 195; except that, the court may, upon its own motion or a motion of the prosecuting or circuit attorney, make a finding that an offender is not eligible if the underlying offense is involuntary manslaughter in the second degree, stalking in the first degree, assault in the second degree, sexual assault, rape in the second degree, domestic assault in the second degree, assault in the third degree when the victim is a special victim, statutory rape in the second degree, statutory sodomy in the second degree, deviate sexual assault, sodomy in the second degree, sexual misconduct involving a child, incest, endangering the welfare of a child in the first degree under subdivision (1) or (2) of subsection 1 of section 568.045, abuse of a child, invasion of privacy, any case in which the defendant is found guilty of a felony offense under chapter 571, or an offense of aggravated stalking or assault of a law enforcement officer in the second degree as such offenses existed prior to January 1, 2017;

(b) The probation violation is not the result of the defendant being an absconder or being found guilty of, pleading guilty to, or being arrested on suspicion of any felony, misdemeanor, or infraction. For purposes of this subsection, “absconder” shall mean an offender under supervision who has left such offender’s place of residency without the permission of the offender’s supervising officer for the purpose of avoiding supervision;

(c) The defendant has not violated any conditions of probation involving the possession or use of weapons, or a stay-away condition prohibiting the defendant from contacting a certain individual; and

(d) The defendant has not already been placed in one of the programs by the court for the same underlying offense or during the same probation term.

(2) Upon receiving the order, the department of corrections shall conduct an assessment of the offender and place such offender in the appropriate one hundred twenty-day program under subsection 3 of section 559.115.

(3) Notwithstanding any of the provisions of subsection 3 of section 559.115 to the contrary, once the defendant has successfully completed the program under this subsection, the court shall release the defendant to continue to serve the term of probation, which shall not be modified, enlarged, or extended based on the same incident of violation. Time served in the program shall be credited as time served on any sentence imposed for the underlying offense.

5. If the defendant consents to the revocation of probation or if the defendant is not eligible under subsection 4 of this section for placement in a program and a continuation, modification, enlargement, or extension of the term under this section is not appropriate, the court may revoke probation and order that any sentence previously imposed be executed. If imposition of sentence was suspended, the court may revoke probation and impose any sentence available under section 557.011. The court may mitigate any sentence of imprisonment by reducing the prison or jail term by all or part of the time the defendant was on probation. The court may, upon revocation of probation, place an offender on a second term of probation. Such probation shall be for a term of probation as provided by section 559.016, notwithstanding any amount of time served by the offender on the first term of probation.

6. Probation shall not be revoked without giving the probationer notice and an opportunity to be heard on the issues of whether such probationer violated a condition of probation and, if a condition was violated, whether revocation is warranted under all the circumstances. Not less than five business days prior to the date set for a hearing on the violation, except for a good cause shown, the judge shall inform the probationer that he or she may have the right to request the appointment of counsel if the probationer is unable to retain counsel. If the probationer requests counsel, the judge shall determine whether counsel is necessary to protect the probationer’s due process rights. If the judge determines that counsel is not necessary, the judge shall state the grounds for the decision in the record.

7. The prosecuting or circuit attorney may file a motion to revoke probation or at any time during the term of probation, the court may issue a notice to the probationer to appear to answer a charge of a violation, and the court may issue a warrant of arrest for the violation. Such notice shall be personally served upon the probationer. The warrant shall authorize the return of the probationer to the custody of the court or to any suitable detention facility designated by the court. Upon the filing of the prosecutor’s or circuit attorney’s motion or on the court’s own motion, the court may immediately enter an order suspending the period of probation and may order a warrant for the defendant’s arrest. The probation shall remain suspended until the court rules on the prosecutor’s or circuit attorney’s motion, or until the court otherwise orders the probation reinstated.

8. The power of the court to revoke probation shall extend for the duration of the term of probation designated by the court and for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs prior to the expiration of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period.

9. A defendant who was sentenced prior to January 1, 2017 to an offense that was eligible at the time of sentencing under paragraph (a) of subdivision (1) of subsection 4 of this section for the court ordered detention sanction shall continue to remain eligible for the sanction so long as the defendant meets all the other requirements provided under subsection 4 of this section.

Contact John Picerno a criminal defense attorney in Kansas City to discuss your probation.




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