Probation Violation Response

TABLE OF CONTENTS

1. Caption
2. Introduction and Procedural History
3. Response to Allegations
4. Constitutional Rights
5. Standard of Proof
6. Sentencing Limitations and Benchmarks
7. Mitigating Factors
8. Alternative Sanctions Proposed
9. Evidence and Witness List
10. Conclusion and Prayer for Relief
11. Certificate of Service

Caption

STATE OF RHODE ISLAND
[________________________________] DIVISION
SUPERIOR COURT / DISTRICT COURT

Introduction and Procedural History

COMES NOW Defendant, [________________________________], by and through [his/her] attorney, [________________________________], Esq., RI Bar No. [________], and hereby files this Response to the Alleged Violation of Probation.

1. On [__/__/____], the Defendant was convicted of / pleaded guilty to [________________________________] in violation of R.I. Gen. Laws § [________________________________], a felony / misdemeanor.

2. On [__/__/____], the Court placed Defendant on probation for a period of [____] months/years subject to terms and conditions pursuant to R.I. Gen. Laws § 12-19-8.

3. On [__/__/____], the State filed a Violation of Probation petition alleging:

a. [________________________________]

b. [________________________________]

c. [________________________________]

4. The Defendant was arrested on [__/__/____]. Pursuant to R.I. Gen. Laws § 12-19-9, the hearing must be conducted within thirty (30) days of arrest unless waived by the Defendant.

Response to Allegations

A. Classification of Alleged Violations

☐ Technical Violation(s): Allegation(s) [____] are technical violations of probation conditions, not a new alleged crime.

☐ New Criminal Offense(s): Allegation(s) [____] allege new criminal conduct.

B. Specific Responses

Allegation 1: [________________________________]

☐ Denied. The Defendant denies this allegation. [________________________________]

☐ Admitted with Explanation. The Defendant admits the factual basis but offers the following explanation: [________________________________]

☐ Admitted. The Defendant admits this allegation.

Allegation 2: [________________________________]

☐ Denied. [________________________________]

☐ Admitted with Explanation. [________________________________]

☐ Admitted. The Defendant admits this allegation.

Constitutional Rights

The Defendant asserts the following constitutional and statutory rights:

1. Right to Written Notice. The Defendant is entitled to written notice of the claimed violations. Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

2. Right to Hearing. The court must conduct a hearing within thirty (30) days of arrest. R.I. Gen. Laws § 12-19-9.

3. Right to Counsel. The Defendant is entitled to representation by counsel. Gagnon v. Scarpelli, 411 U.S. 778 (1973).

4. Right to Be Present and Respond. The Defendant has the opportunity to be present and respond at the hearing. R.I. Gen. Laws § 12-19-9.

5. Right to Confront and Cross-Examine Witnesses. The Defendant has the right to confront and cross-examine adverse witnesses. Morrissey, 408 U.S. at 489.

6. Right to Present Evidence. The Defendant has the right to present witnesses and documentary evidence.

7. Bail Limitations. The court may hold the Defendant without bail for no more than ten (10) days, excluding Saturdays, Sundays, and holidays. R.I. Gen. Laws § 12-19-9.

Standard of Proof

Pursuant to R.I. Gen. Laws § 12-19-9, the State bears the burden of proving each alleged violation by a fair preponderance of the evidence. The Defendant submits the State cannot meet this burden as to the denied allegations because:

[________________________________]

Sentencing Limitations and Benchmarks

The Defendant asserts:

☐ The Department of Corrections report recommends: [________________________________].

☐ The Department has recommended that time served is a sufficient response to a violation that is not a new alleged crime.

☐ Sentencing must be in accordance with judicial sentencing benchmarks; the applicable benchmarks indicate: [________________________________].

☐ Any sentence imposed should not exceed the previously imposed sentence of [________________________________].

Dispositional Options Under § 12-19-9

The Court is authorized to:

1. Remove the suspension and order commitment on the sentence previously imposed, or on a lesser sentence;
2. Impose a sentence if one has not been previously imposed;
3. Stay all or a portion of the sentence imposed after removal of the suspension;
4. Continue the suspension of a sentence previously imposed;
5. Convert a sentence of probation without incarceration to a suspended sentence.

Mitigating Factors

The Court should consider the following mitigating factors:

☐ Employment: Defendant is currently employed at [________________________________] since [__/__/____].

☐ Education: Defendant is enrolled in / has completed [________________________________].

☐ Treatment: Defendant is participating in [________________________________] since [__/__/____].

☐ Family: Defendant is the primary caretaker for [________________________________].

☐ Compliance: Defendant has substantially complied with all other conditions, including: [________________________________].

☐ Circumstances: The alleged violation occurred due to: [________________________________].

☐ Health: Defendant has medical/mental health conditions: [________________________________].

☐ Time Served: Defendant has served [____] of [____] months/years of probation without prior violations.

☐ DOC Recommendation: The Department of Corrections recommends: [________________________________].

☐ Other: [________________________________]

Alternative Sanctions Proposed

In lieu of removing the suspension and ordering commitment, the Defendant respectfully requests:

☐ Continuation of the suspension of the sentence previously imposed.

☐ Stay of all or a portion of any sentence imposed after removal of the suspension.

☐ Conversion of probation to a suspended sentence (if currently on probation without incarceration).

☐ Modification of probation conditions, specifically: [________________________________].

☐ Extension of probation period by [____] months.

☐ Community service of [____] hours.

☐ Enrollment in treatment program: [________________________________].

☐ Increased supervision/reporting requirements.

☐ Substance abuse testing at increased frequency.

☐ Other: [________________________________]

Evidence and Witness List

A. Documentary Evidence

B. Witness List

1. [________________________________] — [relationship/title] — will testify regarding [________________________________].

2. [________________________________] — [relationship/title] — will testify regarding [________________________________].

3. [________________________________] — [relationship/title] — will testify regarding [________________________________].

Conclusion and Prayer for Relief

WHEREFORE, the Defendant respectfully requests that this Court:

☐ Dismiss the Violation of Probation in its entirety;

☐ Find that the State has failed to meet its burden of proof by a fair preponderance of the evidence;

☐ Continue the suspension of sentence under existing terms and conditions;

☐ Modify the conditions of probation as proposed above;

☐ Stay any sentence imposed in accordance with judicial sentencing benchmarks;

☐ Grant such other and further relief as the Court deems just and appropriate.

Respectfully submitted,

Date: [__/__/____]

_____________________________________________
[________________________________]
Attorney for Defendant
RI Bar No. [________]
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Email: [________________________________]

Certificate of Service

I hereby certify that on [__/__/____], a true and correct copy of the foregoing RESPONSE TO ALLEGED VIOLATION OF PROBATION was served upon:

☐ Hand-delivered to:
☐ Electronically filed and served via the Court's e-filing system to:
☐ Mailed via U.S. Mail, postage prepaid, to:

[________________________________]
Assistant Attorney General
Rhode Island Attorney General's Office
[________________________________]
[________________________________]

_____________________________________________
[________________________________]

Sources and References

• R.I. Gen. Laws § 12-19-9 — Violation of Terms of Probation; Revocation or Continuation
• R.I. Gen. Laws Chapter 12-19 — Probation
• Morrissey v. Brewer, 408 U.S. 471 (1972)
• Gagnon v. Scarpelli, 411 U.S. 778 (1973)