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Senate Study Bill 320

Conference Committee Text

PAG LIN
  1  1    Section 1.  Section 905.7, subsection 6, Code 1995, is
  1  2 amended to read as follows:
  1  3    6.  Provide a program to assist placing or assisting the
  1  4 court in placing defendants who as a condition of probation
  1  5 are sentenced to perform unpaid community service.
  1  6    Sec. 2.  Section 905.7, Code 1995, is amended by adding the
  1  7 following new subsection:
  1  8    NEW SUBSECTION.  9.  Provide for procedures for the review
  1  9 of decisions of probation officers by district directors and
  1 10 the board of directors of the judicial district department of
  1 11 correctional services, as required pursuant to sections 907.6,
  1 12 907.7, and 908.11.
  1 13    Sec. 3.  Section 907.2, unnumbered paragraph 2, Code 1995,
  1 14 is amended to read as follows:
  1 15    Probation officers employed by the judicial district
  1 16 department of correctional services, while performing the
  1 17 duties prescribed by that department, are peace officers.
  1 18 Probation officers shall investigate all persons referred to
  1 19 them for investigation by the director of the judicial
  1 20 district department of correctional services which employs
  1 21 them.  They shall furnish to each person released under their
  1 22 supervision or committed to a community corrections
  1 23 residential facility operated by the judicial district
  1 24 department of correctional services, a written statement of
  1 25 the conditions of probation or commitment.  They shall keep
  1 26 informed of each person's conduct and condition and shall use
  1 27 all suitable methods prescribed by the judicial district
  1 28 department of correctional services to aid and encourage the
  1 29 person to bring about improvements in the person's conduct and
  1 30 condition.  Probation officers shall keep records of their
  1 31 work and shall make reports to the court in the manner
  1 32 required by the person's sentencing order, when alleged new
  1 33 violations of the law occur, make reports to the director of
  1 34 the judicial district department of correctional services when
  1 35 alleged new violations of the terms and conditions of
  2  1 probation occur, and make reports to the court within no less
  2  2 than thirty days before the period of probation will expire.
  2  3 Probation officers shall coordinate their work with other
  2  4 social welfare agencies which offer services of a corrective
  2  5 nature operating in the area to which they are assigned.
  2  6    Sec. 4.  Section 907.3, subsection 1, unnumbered paragraph
  2  7 1, Code 1995, is amended to read as follows:
  2  8    With the consent of the defendant, the court may defer
  2  9 judgment and place the defendant on probation upon such
  2 10 conditions as it may require.  Conditions may include, but are
  2 11 not limited to, requiring the defendant to comply with any
  2 12 terms or conditions as may be imposed or modified by the
  2 13 person's probation officer, and shall specify whether terms or
  2 14 conditions imposed or modified by the probation officer are
  2 15 subject to direct review by the court or administrative appeal
  2 16 with judicial review, as specified in section 907.6.  Upon a
  2 17 showing that the defendant is not co-operating cooperating
  2 18 with the program of probation or is not responding to it, the
  2 19 court may withdraw the defendant from the program, pronounce
  2 20 judgment, and impose any sentence authorized by law.  Before
  2 21 taking such action, the court shall give the defendant an
  2 22 opportunity to be heard on any matter relevant to the proposed
  2 23 action.  Upon fulfillment of the conditions of probation, the
  2 24 defendant shall be discharged without entry of judgment.  Upon
  2 25 violation of the conditions of probation, the court may
  2 26 proceed as provided in chapter 908.
  2 27    Sec. 5.  Section 907.3, subsections 2 and 3, Code 1995, are
  2 28 amended to read as follows:
  2 29    2.  At the time of or after pronouncing judgment and with
  2 30 the consent of the defendant, the court may defer the sentence
  2 31 and assign the defendant to the judicial district department
  2 32 of correctional services upon such conditions as the court may
  2 33 require.  However, the court shall not defer the sentence for
  2 34 a violation of section 708.2A if the defendant has previously
  2 35 received a deferred judgment or sentence for a violation of
  3  1 section 708.2 or 708.2A which was issued on a domestic abuse
  3  2 assault, or if similar relief was granted anywhere in the
  3  3 United States concerning that jurisdiction's statutes which
  3  4 substantially correspond to domestic abuse assault as provided
  3  5 in section 708.2A.  In addition, the court shall not defer a
  3  6 sentence if it is imposed for contempt pursuant to section
  3  7 236.8 or 236.14.  Conditions of probation may include, but are
  3  8 not limited to, requiring the defendant to comply with any
  3  9 terms or conditions as may be imposed by the person's
  3 10 probation officer, and shall specify whether terms or
  3 11 conditions imposed or modified by the probation officer are
  3 12 subject to direct review by the court or by the director and
  3 13 the board of the judicial district department of correctional
  3 14 services, with judicial review as provided in section 907.6.
  3 15 Upon a showing that the defendant is not fulfilling the
  3 16 conditions of probation, the court may revoke probation and
  3 17 impose any sentence authorized by law.  Before taking such
  3 18 action, the court shall give the defendant an opportunity to
  3 19 be heard on any matter relevant to the proposed action.  Upon
  3 20 violation of the conditions of probation, the court may
  3 21 proceed as provided in chapter 908.
  3 22    3.  By record entry at the time of or after sentencing, the
  3 23 court may suspend the sentence and place the defendant on
  3 24 probation upon such terms and conditions as it may require
  3 25 including be required by the judicial district department of
  3 26 correctional services.  Placement by the court may include
  3 27 initial commitment to an alternate jail facility or a
  3 28 community correctional residential treatment facility by the
  3 29 court for a specific number of days to be followed by a term
  3 30 of probation as specified in section 907.7.  A person so
  3 31 committed who has probation revoked shall be given credit for
  3 32 such time served.  However, the court shall not suspend the
  3 33 minimum term of two days imposed pursuant to section 708.2A,
  3 34 and the court shall not suspend a sentence imposed pursuant to
  3 35 section 236.8 or 236.14 for contempt.
  4  1    Sec. 6.  Section 907.6, Code 1995, is amended to read as
  4  2 follows:
  4  3    907.6  CONDITIONS OF PROBATION &endash; REGULATIONS.
  4  4    Probationers are subject to the conditions established by
  4  5 the judicial district department of correctional services
  4  6 subject to the approval of the court or by the court if the
  4  7 person is not committed to the custody, care, and supervision
  4  8 of the judicial district department of correctional services,
  4  9 and any additional reasonable conditions which the court or
  4 10 the judicial district department of correctional services may
  4 11 impose to promote rehabilitation of the defendant or
  4 12 protection of the community.  Conditions may include but are
  4 13 not limited to adherence to regulations generally applicable
  4 14 to persons released on parole and including requiring unpaid
  4 15 community service as allowed pursuant to section 907.13.  A
  4 16 probationer may appeal decisions relating to the conditions of
  4 17 the person's probation, made by the person's probation
  4 18 officer, to the director of the judicial district department
  4 19 of correctional services which shall be subject to review by
  4 20 the board of the judicial district department of correctional
  4 21 services.  Decisions of the board are final agency actions
  4 22 under chapter 17A and are subject to judicial review in the
  4 23 district court in which the person was sentenced,
  4 24 notwithstanding the venue provisions of section 17A.19,
  4 25 subsection 2.
  4 26    Sec. 7.  Section 907.7, unnumbered paragraph 2, Code 1995,
  4 27 is amended to read as follows:
  4 28    The length of the probation shall not be less than one year
  4 29 if the offense is a misdemeanor and shall not be less than two
  4 30 years if the offense is a felony.  However, the court a
  4 31 person's probation officer may subsequently reduce the length
  4 32 of the probation if the court officer determines that the
  4 33 purposes of probation have been fulfilled.  The purposes of
  4 34 probation are to provide maximum opportunity for the
  4 35 rehabilitation of the defendant and to protect the community
  5  1 from further offenses by the defendant and others.  A decision
  5  2 of a probation officer may be appealed to the director of the
  5  3 judicial district department of correctional services, and
  5  4 shall be subject to review by the board.  Decisions of the
  5  5 board are final agency actions under chapter 17A and are
  5  6 subject to judicial review in the district court in which the
  5  7 person was sentenced, notwithstanding the venue provisions of
  5  8 section 17A.19, subsection 2.
  5  9    Sec. 8.  Section 907.8, Code 1995, is amended to read as
  5 10 follows:
  5 11    907.8  SUPERVISION DURING PROBATIONARY PERIOD.
  5 12    A person released on formal probation shall be assigned to
  5 13 a probation officer who shall develop the person's plan of
  5 14 probation.  Both the The person and the person's probation
  5 15 officer shall be furnished with the conditions of the person's
  5 16 probation including a copy of the plan of restitution and the
  5 17 restitution plan of payment, if any, and the regulations which
  5 18 the person will be required to observe, in writing.  The
  5 19 probation officer shall explain these conditions and
  5 20 regulations to the person and shall supervise, assist, and
  5 21 counsel the person during the term of the person's probation.
  5 22    When probation is granted, the court shall order said the
  5 23 person committed to the custody, care, and supervision of one
  5 24 of the following:
  5 25    1.  Of any A suitable resident of this state; or.
  5 26    2.  Of the The judicial district department of correctional
  5 27 services.
  5 28    Jurisdiction of these persons shall remain with the
  5 29 sentencing court.
  5 30    In each case wherein the court shall order said a person
  5 31 committed to the custody, care, and supervision of the
  5 32 judicial district department of correctional services, the
  5 33 clerk of the district court shall at once furnish the director
  5 34 of the judicial district department of correctional services
  5 35 with certified copies of the indictment or information, the
  6  1 minutes of testimony attached thereto, the judgment entry if
  6  2 judgment is not deferred, and the original mittimus.  The
  6  3 county attorney shall at once advise the director, by letter,
  6  4 that the defendant has been placed under the supervision of
  6  5 the judicial district department of correctional services and
  6  6 give the director a detailed statement of the facts and
  6  7 circumstances surrounding the crime committed and the record
  6  8 and history of the defendant as may be known to the county
  6  9 attorney.  If the defendant is confined in the county jail at
  6 10 the time of sentence, the court may order the defendant held
  6 11 until arrangements are made by the judicial district
  6 12 department of correctional services for the defendant's
  6 13 employment and the defendant has signed the necessary
  6 14 probation papers.  If the defendant is not confined in the
  6 15 county jail at the time of sentence, the court may order the
  6 16 defendant to remain in the county wherein in which the
  6 17 defendant has been convicted and sentenced and report to the
  6 18 sheriff as to the defendant's whereabouts.
  6 19    Sec. 9.  Section 907.10, Code 1995, is amended to read as
  6 20 follows:
  6 21    907.10  RELEASE ON PROBATION AFTER COMPLETING PROGRAM.
  6 22    When Unless the person has been committed to the custody of
  6 23 the judicial district department of correctional services,
  6 24 when the court has determined that any person ordered to
  6 25 participate in a locally administered correctional program,
  6 26 pursuant to section 907.3, subsection 1, has successfully
  6 27 completed such the program, the court shall order such the
  6 28 person to be released on probation.  If the person has been
  6 29 committed to the custody of the judicial district department
  6 30 of correctional services, the person shall be released on
  6 31 probation from the locally administered correctional program
  6 32 upon the determination by the judicial district department of
  6 33 correctional services that the person has successfully
  6 34 completed the program.
  6 35    Sec. 10.  Section 907.13, subsection 1, Code 1995, is
  7  1 amended by striking the subsection.
  7  2    Sec. 11.  Section 907.13, subsections 2, 3, and 4, Code
  7  3 1995, are amended to read as follows:
  7  4    2.  The defendant's plan of community service, the comments
  7  5 of the defendant's probation officer, and the comments of the
  7  6 representative of the judicial district department of
  7  7 correctional services responsible for the probation may
  7  8 include a plan that provides for the performance of unpaid
  7  9 community service program, shall be submitted promptly to the
  7 10 court work.  The court shall promptly enter an order approving
  7 11 the plan or modifying it.  Compliance with the plan of
  7 12 community service as approved or modified by the court shall
  7 13 be a condition of the defendant's probation.  The court
  7 14 thereafter may modify the If the defendant is not under the
  7 15 supervision of the judicial district department of
  7 16 correctional services, the plan may be modified by the court
  7 17 at any time upon the defendant's request.  If the defendant is
  7 18 under the supervision of the judicial district department of
  7 19 correctional services, the plan may be modified by the
  7 20 person's probation officer upon the defendant's request or
  7 21 upon the request of the judicial district department of
  7 22 correctional services, or upon the court's own motion decision
  7 23 of the judicial district department of correctional services.
  7 24 As part of or as an option for modification of a plan, the
  7 25 court or the defendant's probation officer, if the defendant
  7 26 is under the supervision of the judicial district department
  7 27 of correctional services, may allow a defendant to complete
  7 28 some part or all of the defendant's community service
  7 29 obligation through the donation of property to a charitable
  7 30 organization other than a governmental subdivision.  A
  7 31 donation of property to a charitable organization offered in
  7 32 satisfaction of some part or all of a community service
  7 33 obligation under this subsection is not a deductible
  7 34 contribution for the purposes of federal or state income
  7 35 taxes.
  8  1    3.  At any time during the probation period the defendant
  8  2 may request and the court shall grant be granted a hearing on
  8  3 any matter related to the plan of community service.  A final
  8  4 decision of the judicial district department of correctional
  8  5 services is subject to judicial review in the district court
  8  6 in which the person was sentenced, notwithstanding the venue
  8  7 provisions of section 17A.9, subsection 2.
  8  8    4.  Failure of the defendant to comply with subsection 1
  8  9 the defendant's plan of probation or to comply with the plan
  8 10 of community service as approved or modified by the court or
  8 11 the judicial district department of correctional services
  8 12 shall constitute a violation of the conditions of probation.
  8 13 Without limitation, the court or the defendant's probation
  8 14 officer may modify the plan of community service or modify the
  8 15 required hours of service, but not beyond the maximum hours of
  8 16 service specified in subsection 1 term of confinement
  8 17 specified for the offense of which the defendant is convicted.
  8 18 Modifications of the plan by a person's probation officer may
  8 19 be appealed to the director of the judicial district
  8 20 department of correctional services and shall be subject to
  8 21 review by the board of the judicial district department of
  8 22 correctional services, and the district court in which the
  8 23 person was sentenced, notwithstanding the venue provisions of
  8 24 section 17A.19, subsection 2.
  8 25    Sec. 12.  Section 908.11, Code 1995, is amended to read as
  8 26 follows:
  8 27    908.11  VIOLATION OF PROBATION.
  8 28    1.  A probation officer or the judicial district department
  8 29 of correctional services, having probable cause to believe
  8 30 that any person released on probation has violated the
  8 31 conditions of probation by committing a new offense, shall
  8 32 proceed by arrest or summons as in the case of a parole
  8 33 violation.  The If the violation of the conditions of
  8 34 probation consist of an arrest and conviction for a new
  8 35 offense, the functions of the liaison officer and the board of
  9  1 parole shall be performed by the judge or magistrate who
  9  2 placed the alleged violator on probation if that judge or
  9  3 magistrate is available, otherwise by another judge or
  9  4 magistrate who would have had jurisdiction to try the original
  9  5 offense.
  9  6    2.  If the probation officer proceeds by arrest, any
  9  7 magistrate may receive the complaint, issue an arrest warrant,
  9  8 or conduct the initial appearance and probable cause hearing
  9  9 if it is not convenient for the judge who placed the alleged
  9 10 violator on probation to do so.  The initial appearance,
  9 11 probable cause hearing, and probation revocation hearing, or
  9 12 any of them, may at the discretion of the court be merged into
  9 13 a single hearing when it appears that the alleged violator
  9 14 will not be prejudiced thereby.  If the violation is
  9 15 established, the court may continue the probation with or
  9 16 without an alteration of the conditions of probation.  If the
  9 17 defendant is an adult the court may hold the defendant in
  9 18 contempt of court and sentence the defendant to a jail term
  9 19 while continuing the probation, order the defendant to be
  9 20 placed in a violator facility established pursuant to section
  9 21 904.207 while continuing the probation, or revoke the
  9 22 probation and require the defendant to serve the sentence
  9 23 imposed or any lesser sentence, and, if imposition of sentence
  9 24 was deferred, may impose any sentence which might originally
  9 25 have been imposed.
  9 26    3.  A probation officer or the judicial district department
  9 27 of correctional services, having probable cause to believe
  9 28 that any person released on probation has violated the
  9 29 conditions of probation by violating any term of probation
  9 30 other than committing a new offense, shall proceed by arrest
  9 31 or summons as in the case of a parole violation.  The
  9 32 functions of the liaison officer and the board of parole shall
  9 33 be performed by the person's probation officer and the
  9 34 director of the judicial district department of correctional
  9 35 services.  A decision of a director may be appealed to the
 10  1 board of the judicial district department of correctional
 10  2 services.  Decisions of the board are final agency actions
 10  3 under chapter 17A and are subject to judicial review in the
 10  4 district court in which the person was sentenced,
 10  5 notwithstanding the venue provisions of section 17A.19,
 10  6 subsection 2.  The initial appearance, probable cause hearing,
 10  7 and probation modification hearing may be merged into a single
 10  8 hearing at the discretion of the director.  Modification of a
 10  9 person's probation may include changes in any of the terms of
 10 10 the person's release and may provide for, but is not limited
 10 11 to, a limited period of detention or incarceration while
 10 12 continuing the probation or a requirement that the person be
 10 13 placed in a violator facility established pursuant to section
 10 14 904.207 while continuing the probation.  If the director, or
 10 15 the board, decides to revoke the person's probation, the
 10 16 person's probation officer shall file an application with the
 10 17 court for revocation of the person's probation.  
 10 18                           EXPLANATION
 10 19    This bill provides that when a person's sentence is
 10 20 suspended and the person is placed on probation, the terms of
 10 21 the person's probation are to be determined by the judicial
 10 22 district department of corrections.  If a person violates the
 10 23 terms of the person's probation, short of committing a new
 10 24 offense, the director of the judicial district department of
 10 25 correctional services may modify the terms of the person's
 10 26 probation.  A decision of the director is subject to review by
 10 27 the board of the judicial district department of correctional
 10 28 services.  The decision of the board of the judicial district
 10 29 department of correctional services may be appealed to the
 10 30 district court in which the person was sentenced, in the same
 10 31 manner provided for appeals from other agency action.  If a
 10 32 person's judgment or sentence is deferred, the court may
 10 33 choose to have the terms of the person's probation be
 10 34 determined and increased or modified by the judicial district
 10 35 department of correctional services, or place the person on
 11  1 probation and retain the authority to review any increase in
 11  2 the terms and conditions of probation.  If a person is placed
 11  3 on probation, whether the terms of that probation are
 11  4 determined by the judicial district department of correctional
 11  5 services or the court, and the person commits a new offense,
 11  6 the hearing on that probation violation shall be conducted by
 11  7 the court.  
 11  8 LSB 1811SC 76
 11  9 lh/jw/5
     

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