PROBATIONPROBATIONPROBATIONPROBATIONPROBATION
(See also, SENTENCING, PRISONERS AND
PAROLE, this Digest)
I. PROBATION AND CONDITIONS
N.J.S.A. 2C:45-2a provides that when the court has
sentenced a defendant to be placed on probation, the
period of probation shall be fixed by the court at not less
than one year nor more than five years.
A defendant convicted of any offense may be placed
on probation for a period of up to five years,
notwithstanding the fact that the probationary term may
exceed the statutory maximum sentence for that offense.
State v. Dove, 202 N.J. Super. 540 (Law Div. 1985).
When the court sentences a defendant to a
probationary term, it shall attach such reasonable
conditions as it deems necessary to insure that the
defendant will lead a law-abiding life or is likely to assist
him or her to do so. N.J.S.A. 2C:45-1a.
Trial court can order, as a condition of probation,
defendant’s exclusion from casino hotels, provided that
the casino disbarment does not exceed the length of the
probationary term. State v. Krueger, 241 N.J. Super. 244,
255-259 (App. Div. 1990).
Waiver of right to extradition in the event of VOP
violation can be condition of probation for probationer
permitted to reside out of state. State v. Maglio, 189
N.J.Super. 257, 259 (Law Div. 1983).
Court can require that defendant serve a county jail
sentence not exceeding 364 days, as a condition of
probation. N.J.S.A. 2C:43-2b(2). The custodial portion
of probationary sentence can be served at any time during
a probationary period, State v. Postal, 204 N.J. Super. 94
(Law Div. 1985), and it can be reduced at any time. State
v. Robinson, 198 N.J. Super. 602 (Law Div. 1984).
The presumption of non-incarceration is not violated
by imposition of probationary sentence with condition of
county jail sentence (split sentence). State v. Hartye, 105
N.J. 411 (1987); State v. O’Connor, 105 N.J. 399 (1987)
(overruling State v. Hess, 198 N.J. Super. 322, 327 (App.
Div. 1984).
The presumption of incarceration is not satisfied by
the imposition of a probationary sentence with the
condition of a county jail sentence (split sentence). State
v. O’Connor, 105 N.J. at 408-409. See, e.g., State v.
Whidby, 204 N.J. Super. 312 (App. Div. 1985); State v.
Kreidler, 211 N.J. Super. at 279.II. REVOCATION HEARING
The penal code provides in N.J.S.A. 2C:45-3a(4)
that the court may revoke a defendant’s probation and
resentence him if it is satisfied that the defendant has
inexcusably failed to comply with a substantial
requirement imposed as a condition of probation or if he
has been convicted of another offense.In State v. Reyes, 207 N.J. Super. 126, 135 (App. Div.
1986), certif. denied 103 N.J. 499 (1986), the Court held
that a violation of probation may not be found unless
defendant has been convicted of another offense or the
court is satisfied by a preponderance of the evidence that
defendant has inexcusably failed to comply with a
substantial requirement imposed as a condition of
probation. See, e.g., State v. Jenkins, 299 N.J. Super. 61,
73 (App. Div. 1997).N.J.S.A. 2C:45-4 provides that prior to any
probation revocation or modification of probationary
conditions, the defendant shall be given written notice of
the grounds on which the action is proposed and a
hearing. The defendant shall have the right to hear and
controvert the evidence against him, to offer evidence in
his defense, and to be represented by counsel. See Gagon
v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 1760 (1983)
(due process requirements set forth in Morrissey v. Brewer,
408 U.S. 471, 92 S.Ct. 2593 (1972), for parole
revocation hearings are equally applicable to probation
revocation hearings); State v. Johnson, 133 N.J.Super.
457, 461 (App. Div.1975).In order for the court to have jurisdiction to revoke
probation and punish a probationer for violation of a
probationary condition, the probation violation
complaint must be filed with the court during the
probationary term. State v. Grabinski, 245 N.J. Super.
402, 405 (App. Div. 1991); State v. Joseph, 238 N.J.
Super. 219, 222 (App. Div. 1990); State v. DeChristino,
235 N.J. Super. 291, 295, 296 (App. Div. 1989). State
v. Gibson, 156 N.J. Super. 516, 531 (App. Div. 1981),
certif. denied 78 N.J. 411 (1978).The filing of a petition or complaint by a probation
officer constitutes commencement of the probation
revocation proceeding and tolls the probationary period.
N.J.S.A. 2C:45-3c; State v. Grabinski, 245 N.J. Super.
402 (App. Div. 1991).