The Vermont Statutes Online
- Subchapter 001: GENERAL PROVISIONS
§ 200. Purpose of probation
It is the policy of this State that the purpose of probation is to rehabilitate offenders, reduce the risk that they will commit a subsequent offense, and protect the safety of the victim and the community. (Added 2021, No. 24, § 1.)
§ 201. Definitions
Whenever used in this chapter, unless a different meaning plainly is required, "probation" means a procedure under which a respondent, found guilty of a crime upon verdict or plea, is released by the court, without confinement, subject to conditions imposed by the court and subject to the supervision of the Commissioner. (Added 1971, No. 199 (Adj. Sess.), § 20.)
§ 202. Powers and responsibilities of the Commissioner regarding probation
The Commissioner shall be charged with the following powers and responsibilities regarding the administration of probation:
(1) To maintain general supervision of persons placed on probation, and to prescribe rules, consistent with any orders of the court, governing the conduct of such persons.
(2) To supervise the administration of probation services and establish policies and standards and make rules regarding probation investigation, supervision, case work and case loads, record keeping, and the qualification of probation officers.
(3) To use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on probation. Transdermal alcohol monitoring equipment shall be used for such purposes as discouraging persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways. (Added 1971, No. 199 (Adj. Sess.), § 20; amended 2007, No. 179 (Adj. Sess.), § 3.)
§ 203. Probation warrant
(a) Whenever a probationer is placed in the custody of the Commissioner, the court shall furnish the Commissioner with a warrant setting forth the name of the probationer, the nature of the crime of which he or she was convicted, the date and place of trial and sentence, the sentence imposed, the order of the court committing him or her to the charge of the Commissioner, and the conditions of his or her release.
(b) The warrant shall be full authority for the exercise by the Commissioner of all the rights and powers over and in relation to the probationer prescribed by law and by the order of the court.
(c) The warrant shall be sufficient authority for the apprehension and detention of the probationer by the Commissioner or by any officer acting under his or her direction at any time or place. (Added 1971, No. 199 (Adj. Sess.), § 20.)
§ 204. Submission of written report; protection of records
(a) A court, before which a person is being prosecuted for any crime, may in its discretion order the Commissioner to submit a written report as to the circumstances of the alleged offense and the character and previous criminal history record of the person, with recommendation. If the presentence investigation report is being prepared in connection with a person's conviction for a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3, the Commissioner shall obtain information pertaining to the person's juvenile record, if any, in accordance with 33 V.S.A. §§ 5117 and 5119(f)(6), and any deferred sentences received for a registrable sex offense in accordance with 13 V.S.A. § 7041(h), and include such information in the presentence investigation report.
(b) The court shall order such a report to be made before imposing sentence when the respondent is adjudged guilty of a felony, except as otherwise provided by rules of the Supreme Court. If the report has been made to any court within the State within a period of two years with reference to such individual, in connection with the same or another offense, submission of a copy of that report may fulfill the requirements of this section, if the court to which the report is to be submitted approves. Upon request, the Commissioner shall furnish a State's Attorney with a copy of any report made within the State once sentence has been passed in connection with the offense for which the report was made.
(c) The report ordered by the court under this section or section 204a of this title shall be made not less than one week nor more than three weeks from the date of the order. This three-week limit may be extended by order of the court.
(d)(1) Except as provided in subdivision (2) of this subsection, any presentence investigation report or parole summary prepared by any employee of the Department in the discharge of the employee's official duty, except as provided in subdivision 204a(b)(5) and section 205 of this title, is confidential and shall not be disclosed to anyone outside the Department other than the judge or the Parole Board.
(2)(A) The court or Board shall permit inspection of the presentence investigation report or parole summary, redacted of information that may compromise the safety or confidentiality of any person, by the State's Attorney and by the defendant or inmate or his or her attorney; and
(B) the court or Board may, in its discretion, permit the inspection of the presentence investigation report or parole summary or parts thereof by other persons having a proper interest in the report or parole summary, whenever the best interests or welfare of the defendant or inmate makes that action desirable or helpful.
(e) The presentence investigation report ordered by the court under this section or section 204a of this title shall include the comments or written statement of the victim, or the victim's guardian or next of kin if the victim is incompetent or deceased, whenever the victim or the victim's guardian or next of kin choose to submit comments or a written statement.
(f) Except as otherwise provided by law, reports and records subject to this section may be inspected, pursuant to a court order issued ex parte, by a State or federal prosecutor as part of a criminal investigation if the court finds that the records may be relevant to the investigation. The information in the files may be used for any lawful purpose but shall not otherwise be made public. (Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 109, § 10, eff. May 25, 1973; 1981, No. 223 (Adj. Sess.), § 18; 1989, No. 293 (Adj. Sess.), § 7; 1995, No. 170 (Adj. Sess.), § 18, eff. Sept. 1, 1996; 2005, No. 192 (Adj. Sess.), § 11, eff. May 26, 2006; 2009, No. 1, § 35; 2009, No. 58, § 19; 2013, No. 168 (Adj. Sess.), § 3, eff. June 3, 2014; 2015, No. 29, § 21; 2015, No. 137 (Adj. Sess.), § 3, eff. May 25, 2016; 2017, No. 113 (Adj. Sess.), § 169.)
§ 204a. Sex offenders; presentence investigations; risk assessments; psychosexual evaluations
(a) The Department of Corrections shall conduct a presentence investigation for all persons convicted of:
(1) lewd and lascivious conduct in violation of 13 V.S.A. § 2601;
(2) lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602;
(3) sexual assault in violation of 13 V.S.A. § 3252;
(4) aggravated sexual assault in violation of 13 V.S.A. § 3253;
(5) aggravated sexual assault of a child in violation of 13 V.S.A. § 3253a;
(6) kidnapping with intent to commit sexual assault in violation of 13 V.S.A. § 2405(a)(1)(D); or
(7) an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64.
(b) A presentence investigation required by this section:
(1) Shall include an assessment of the offender's risk of reoffense and a determination of whether the person is a high-risk offender.
(2) Shall include a psychosexual evaluation if so ordered by the court.
(3) Shall include information regarding the offender's records maintained by the Department for Children and Families in the Child Protection Registry pursuant to 33 V.S.A. § 4916 if the offender was previously substantiated for child abuse or neglect.
(4) Shall include information, if any, regarding any deferred sentences received by the offender for a registrable sex offense in accordance with 13 V.S.A. § 7041(h).
(5) Shall be completed before the defendant is sentenced. Upon completion, the Department shall submit copies of the presentence investigation to the court, the State's Attorney, the defendant's attorney, and the Department for Children and Families. Copies of a presentence investigation authorized by this subdivision shall remain privileged and are not subject to public inspection.
(c)(1) The Department of Corrections shall prepare a recommendation for programming and treatment for all persons for whom a presentence investigation is required under subsection (a) of this section. The Department shall consider the information contained in the presentence investigation when recommending the programming and treatment appropriate for the offender.
(2) The recommendation required by this subdivision shall address the issue of the availability of appropriate treatment programs within correctional facilities and on an outpatient basis in the community, including recommendation as to the defendant's eligibility for such treatment programs, and shall include a statement of the relevant policies of the Department of Corrections regarding parole recommendations for the offense of which the offender was convicted.
(3)(A) The court may order the Department to provide a report including:
(i) the minimum and maximum sentences necessary to permit admission of the offender to any of the available treatment programs; and
(ii) the results of a preassessment of the offender.
(B) A preassessment under this subdivision shall consist of:
(i) an interview with the defendant;
(ii) an assessment of the offender's risk level;
(iii) completion of testing and any other steps necessary to make an appropriate programming decision for the defendant;
(iv) identification of the treatment program within a correctional facility to which the offender will be referred based on the information available at the time of sentencing, provided the defendant agrees to treatment and is sentenced to a term which permits participation in the program.
(C)(i) Except as provided in subdivision (ii) of this subdivision (C), the Department shall provide a report to the court under this subdivision within 60 days after it is ordered.
(ii) If the Department requires a psychosexual evaluation in order to determine whether the offender will be admitted into any of the available treatment programs, the Department shall complete the evaluation and provide it to the court along with its report within 90 days after the report is ordered.
(d) The requirement that a presentence investigation be performed pursuant to subsection (a) of this section shall not be interpreted to prohibit the performance of a presentence investigation, psychosexual evaluation, or risk assessment at any other time during the proceeding, including prior to the entry of a plea agreement or prior to sentencing for a violation of probation.
(e) Nothing in this section shall be construed to infringe in any manner upon the Department's authority to make decisions about programming for defendants or to create a right on the part of the offender to receive treatment in a particular program. (Added 2005, No. 192 (Adj. Sess.), § 12, eff. May 26, 2006; 2009, No. 1, § 36.)
§ 204b. High-risk sex offenders
A person who is sentenced to an incarcerative sentence for a violation of any of the offenses listed in subsection 204a(a) of this title and who is designated by the Department of Corrections as high-risk pursuant to 13 V.S.A. § 5411b while serving his or her sentence shall not be eligible for parole, furlough, or any other type of early release until the expiration of 70 percent of his or her maximum sentence. (Added 2009, No. 1, § 44.)
§ 205. Probation
(a)(1) After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the Commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court.
(2) The term of probation for misdemeanors shall be for a specific term not to exceed two years unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.
(3)(A) The term of probation for nonviolent felonies shall not exceed four years or the statutory maximum term of imprisonment for the offense, whichever is less, unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.
(B) As used in this subdivision, "nonviolent felonies" means an offense that is not:
(i) a listed crime as defined in 13 V.S.A. § 5301(7); or
(ii) an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64.
(4) Nothing in this subsection shall prevent the court from terminating the period of probation and discharging a person pursuant to section 251 of this title.
(5) The probation officer of a person on probation for a specific term shall review the person's case file during probation and, not less than 45 days prior to the expiration of the probation term, may file a petition with the court requesting the court to extend the period of probation for a specific term not to exceed one year in order to provide the person the opportunity to complete programming consistent with special conditions of probation. A hearing on the petition for an extension of probation under this subsection shall comply with the procedures set forth in Rule 32.1 of the Vermont Rules of Criminal Procedure.
(b)(1) At or before the sentencing hearing, the prosecutor's office shall inform the victim of the midpoint review process for probationers, and that the defendant may be eligible for early discharge from probation pursuant to sections 251 and 252 of this title.
(2) The victim of a listed crime as defined in 13 V.S.A. § 5301(7) for which the offender has been placed on probation shall have the right to request and receive from the Department of Corrections information regarding the offender's general compliance with the specific conditions of probation. Nothing in this section shall require the Department of Corrections to disclose any confidential information revealed by the offender in connection with participation in a treatment program.
(c)(1) Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the offender shall be placed on administrative probation, which means that the only conditions of probation shall be that the probationer:
(A) register with the Department of Corrections' probation and parole office in his or her district;
(B) notify the probation officer of his or her current address each month;
(C) within 72 hours, notify the Department of Corrections if probable cause is found for a criminal offense during the term of probation; and
(D) not be convicted of a criminal offense during the term of probation.
(2) As used in this subsection, "qualifying offense" means:
(A) Unlawful mischief under 13 V.S.A. § 3701.
(B) Retail theft under 13 V.S.A. §§ 2575 and 2577.
(C) Operating after suspension or revocation of license under 23 V.S.A. § 674(a).
(D) Bad checks under 13 V.S.A. § 2022.
(E) Theft of services under 13 V.S.A. § 2582.
(F) Disorderly conduct under 13 V.S.A. § 1026, unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).
(G) Theft of rented property under 13 V.S.A. § 2591.
(H) Operation without consent of owner under 23 V.S.A. § 1094(a).
(I) Petit larceny under 13 V.S.A. § 2502.
(J) Negligent operation of a motor vehicle under 23 V.S.A. § 1091(a).
(K) False reports to law enforcement under 13 V.S.A. § 1754.
(L) Setting fires under 13 V.S.A. § 508.
(N) Simple assault by mutual consent under 13 V.S.A. § 1023(b) unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).
(O) Unlawful trespass under 13 V.S.A. § 3705(a).
(P) A first offense of possession under 18 V.S.A. § 4230(a)(1).
(3) Nothing in this subsection shall prohibit a court from requiring participation in the Restorative Justice Program established in chapter 12 of this title. (Added 1971, No. 199 (Adj. Sess.), § 20; amended 1995, No. 170 (Adj. Sess.), § 19, eff. Sept. 1, 1996; 1999, No. 4, § 4; 2003, No. 145 (Adj. Sess.), § 1, eff. June 3, 2004; 2005, No. 192 (Adj. Sess.), § 18, eff. May 26, 2006; 2007, No. 179 (Adj. Sess.), § 4; 2009, No. 146 (Adj. Sess.), § D5; 2015, No. 147 (Adj. Sess.), § 9, eff. May 31, 2016; 2021, No. 24, § 2.)
§ 206. Expenses of probationer
When a person is placed on probation, the Commissioner may expend such sums as deemed necessary for the temporary support of the person, his or her traveling expenses, or other purposes consistent with the policies of the Department regarding probationers. (Added 1971, No. 199 (Adj. Sess.), § 20.)
§ 207. Final judgment
Notwithstanding the fact that a sentence to probation can subsequently be modified or revoked in accordance with subchapters 2 and 3 of this chapter, a judgment that includes such a sentence shall constitute a final judgment for all other purposes. (Added 1971, No. 199 (Adj. Sess.), § 20.)
- Subchapter 002: CONDITIONS OF PROBATION; MODIFICATIONS; DISCHARGE
§ 251. Duration of probation
(a) The court placing a person on probation may terminate the period of probation and discharge the person at any time if such termination is warranted by the conduct of the offender and the ends of justice.
(b)(1) Upon the Commissioner's motion to discharge pursuant to subsection 252(d) of this title, the sentencing court shall terminate the period of probation and discharge the person at the midpoint of the probation term unless the prosecutor seeks a continuation of probation within 21 days of receipt of notice of the Commissioner's motion; and
(A) the court finds by a preponderance of the evidence that termination and discharge will present a risk of danger to the victim of the offense or to the community; or
(B) the court finds by clear and convincing evidence that the probationer is not substantially in compliance with the conditions of probation that are related to the probationer's rehabilitation or to victim or community safety.
(2) If the court grants the prosecutor's motion to continue probation, it may continue probation for the full term or any portion thereof. The court shall also review the conditions of probation and remove any conditions that are no longer necessary for the remainder of the term.
(c) A probationer shall not be deemed ineligible for discharge or term reduction due to unpaid restitution, fees, or surcharges. (Added 1971, No. 199 (Adj. Sess.), § 20; amended 2021, No. 24, § 3.)
§ 252. Conditions of probation and midpoint review
(a) Conditions, generally. The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist the offender to do so. The court shall provide as an explicit condition of every sentence to probation that if the offender is convicted of another offense during the period for which the sentence remains subject to revocation, then the court may impose revocation of the offender's probation.
(b) Probation conditions. When imposing a sentence of probation, the court may, as a condition of probation, require that the offender:
(1) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip the offender for suitable employment.
(2) Work faithfully for a prescribed number of hours at community service activity acceptable to the court, or if so ordered by the court, acceptable to a probation officer.
(3) Undergo available medical or psychiatric treatment and remain at a specified institution if required for that purpose.
(4) Attend or reside at a facility established for the instruction, recreation, or residence of persons on probation.
(5) Support the offender's dependents and meet other family responsibilities.
(6) Make restitution or reparation to the victim of his or her conduct, or to the Victims' Compensation Fund to the extent it has made payment to or on behalf of the victim in accordance with 13 V.S.A. chapter 167, for the damage or injury which was sustained. When restitution or reparation is a condition of the sentence, the court, in accordance with 13 V.S.A. § 7043, shall fix the amount thereof, which shall not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance.
(7) Pay a fine authorized in accordance with law.
(8) Refrain from purchasing or possessing a firearm or ammunition therefor, destructive device, or other dangerous weapon unless granted written permission by the court or probation officer.
(9) Report to a probation officer at reasonable times as directed by the court or the probation officer.
(10) Permit the probation officer to visit the offender at reasonable times at his or her home or elsewhere.
(11) Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer.
(12) Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment.
(13) Not in any way harass the victim or the family of the victim.
(14) Not contact the victim, unless this condition is specifically waived by the victim.
(15) Participate in the Restorative Justice Program conducted by a community reparative board, pursuant to chapter 12 of this title. The court may direct a reparative board to assist in determining restitution to the victim, as provided by subdivision (6) of this subsection.
(16) Submit to periodic polygraph testing if the offender is being placed on probation for a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3.
(17) If the probation officer has reasonable grounds to believe the offender has violated a probation condition, permit a probation officer or designee to monitor or examine the offender's activities, communications, and use of any computer or other digital or electronic media, including cell phone, smartphone, digital camera, digital video camera, digital music player or recorder, digital video player or recorder, personal digital assistant, portable electronic storage device, gaming system, or any other contemporary device capable of the storage of digital electronic communication or data storage or access to the Internet or other computer or digital network.
(18) Satisfy any other conditions reasonably related to his or her rehabilitation. Such conditions may include prohibiting the use of alcohol, prohibiting having contact with minors, prohibiting or limiting the use of a computer or other electronic devices, and permitting a probation officer access to all computers or other digital or electronic media, mail covers, subscription services, and credit card statements. The court shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender's rehabilitation or necessary to reduce risk to public safety.
(c) Certificate. When an offender is placed on probation, he or she shall be given a certificate explicitly setting forth the conditions upon which he or she is being released.
(d) Review and recommendation for discharge.
(1) The Commissioner shall review the record of each probationer serving a specified term during the month prior to the midpoint of that probationer's specified term and shall file a motion requesting the sentencing court to dismiss the probationer from probation if the offender:
(A) has not been found by the court to have violated the conditions of probation in the six months prior to the review;
(B) is not serving a sentence for committing a crime specified in 13 V.S.A. chapter 19, subchapters 6 and 7; 13 V.S.A. chapter 72, subchapter 1; or 13 V.S.A. § 2602; and
(C) has completed those rehabilitative or risk reduction services required as a condition of probation that have a duration that is set and knowable at the outset of probation.
(2) If the probationer does not meet the criteria set forth in subdivision (1) of this subsection, or if the court denies the Commissioner's motion to discharge, the Commissioner shall file a motion requesting the sentencing court to discharge the probation term once the probationer meets the criteria set forth in subdivision (1) of this subsection.
(3) The prosecutor shall make a reasonable effort to notify any victim of record of a motion filed to reduce a probationer's term pursuant to this subsection. "Reasonable effort" means attempting to contact the victim by first-class mail at the victim's last known address and by telephone at the victim's last known phone number. (Added 1971, No. 199 (Adj. Sess.), § 20; amended 1983, No. 229 (Adj. Sess.), § 5; 1993, No. 169 (Adj. Sess.), § 3, June 3, 1994; 1995, No. 170 (Adj. Sess.), § 20, eff. Sept. 1, 1996; 1999, No. 148 (Adj. Sess.), § 66, eff. May 24, 2000; 2001, No. 134 (Adj. Sess.), § 5; 2007, No. 179 (Adj. Sess.), § 5; 2009, No. 1, § 39; 2021, No. 24, § 4.)
§ 252a. Review of probation conditions
(a) When the court imposes a sentence upon a defendant who has been convicted of an offense enumerated in section 204a of this title that includes a period of incarceration of more than one year to serve to be followed by probation, the court may make the probation contingent on the offender fulfilling specific stated conditions, such as taking part in treatment while incarcerated, and may modify, following a hearing pursuant to subsection (c) of this section, the conditions of probation if a violation has occurred. The court shall review the probation conditions imposed at the time of sentencing after the incarceration portion of the sentence has been served, and prior to the offender's release to probation. Such review shall include information about the offender developed after the date of sentencing, including information about the offender's incarceration period.
(b) For an offender whose probation is contingent on fulfilling conditions pursuant to subsection (a) of this section, the Department of Corrections shall prepare a prerelease probation report to the court at least 30 days prior to the release based upon information available to the Department. The prerelease probation report shall include the offender's degree of participation in treatment while incarcerated, whether conditions imposed under subsection (a) of this section were complied with, and other information relevant to the offender's release to the probationary sentence. The Department of Corrections shall provide a copy of the prerelease probation report to the attorney for the offender and the prosecuting attorney at the same time it provides the report to the court.
(c) If the Commissioner of Corrections believes the offender has violated a condition imposed under subsection (a) of this section, he or she may recommend a change to the original probation order. In this case, the court shall schedule a modification hearing prior to the release date. The court may modify the conditions or add further requirements as authorized by section 252 of this title. The offender shall have a reasonable opportunity to contest the modification prior to its imposition. The prosecuting attorney shall represent the State in connection with any proceeding held in accordance with this section. (Added 2009, No. 1, § 38.)
§ 253. Modification of conditions; revocations
(a) During the period of probation, the court, on application of a probation officer or of the offender, or on its own motion, may modify the requirements imposed upon the offender or add further requirements authorized by section 252 of this title.
(b) Whenever the court proposes any modification of the conditions of probation, the probationer shall have a reasonable opportunity to contest the modification prior to its imposition.
(c) [Repealed.] (Added 1971, No. 199 (Adj. Sess.), § 20; amended 1981, No. 223 (Adj. Sess.), § 19; 2003, No. 57, § 8, eff. July 1, 2004.)
§ 254. Attendance at treatment facility
(a) The court may require a person as a condition of probation to participate as a resident or nonresident in programs at a treatment center for all or part of the period of probation, provided that the Commissioner certifies that adequate treatment facilities, personnel, and programs are available. If the Commissioner determines that the person's residence in the center or participation in its programs, or both, should be terminated, because the person can derive no further significant benefits from such residence or participation, or both, or because his or her residence or participation adversely affects the rehabilitation of other residents or participants, he or she shall so notify the court, which shall thereupon, by order, make such other provision with respect to the person on probation as it deems appropriate.
(b) A person residing in or participating in a program at a treatment center shall be required to abide by the rules and regulations of the center and may be required to pay such cost incident to residence as the Commissioner deems appropriate. (Added 1971, No. 199 (Adj. Sess.), § 20.)
§ 255. Discharge
(a) Upon the termination of the period of probation or the earlier discharge of the probationer in accordance with section 251 of this title, the probationer shall, unless the court has ordered otherwise or under 13 V.S.A. § 7043(l), be relieved of any obligations imposed by the order of the court and shall have satisfied the sentence for the crime.
(c) A court hearing shall be held prior to discharging an offender from probation for a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3. (Added 1971, No. 199 (Adj. Sess.), § 20; amended 2001, No. 134 (Adj. Sess.), § 6; 2003, No. 57, § 9, eff. July 1, 2004; 2009, No. 1, § 41.)
§ 256. Graduated sanctions for technical violations
(a) At any time before the discharge of the probationer or the termination of the period of probation if, in the judgment of the Commissioner, the probationer has violated a condition or conditions of his or her probation, other than a condition that the probationer pay restitution to the Department or a violation which constitutes a new crime, the Commissioner may sanction the probationer in accordance with rules adopted pursuant to subsection (b) of this section. However, no probationer shall be incarcerated except pursuant to the provisions of subchapter 3 of this chapter.
(b) The Department of Corrections shall adopt rules pursuant to 3 V.S.A. chapter 25 that establish graduated sanction guidelines for probation violations as an alternative to arrest or citation under section 301 of this title. (Added 2009, No. 146 (Adj. Sess.), § D8.)
- Subchapter 003: REVOCATION OF PROBATION
§ 301. Summons or arrest of probationer
At any time before the discharge of the probationer or the termination of the period of probation:
(1) Summons or warrant for arrest. The court may summon the probationer to appear before it or may issue a warrant for his or her arrest.
(2) Arrest or citation of person on probation. Any correctional officer may arrest a probationer without a warrant if, in the judgment of the correctional officer, the probationer has violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution; or may deputize any other law enforcement officer to arrest a probationer without a warrant by giving him or her a written statement setting forth that the probationer has, in the judgment of the correctional officer, violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution. The written statement delivered with the person by the arresting officer to the supervising officer of the correctional facility to which the person is brought for detention shall be sufficient warrant for detaining him or her. In lieu of arrest, a correctional officer may issue a probationer a citation to appear for arraignment. In deciding whether to arrest or issue a citation, an officer shall consider whether issuance of a citation will reasonably ensure the probationer's appearance at future proceedings and reasonably protect the public.
(3) No right of action. Any probationer arrested and detained in accordance with the provisions of this chapter shall have no right of action against any law enforcement officer, correctional officer, employee of the Department of Corrections, or any other persons because of such arrest and detention.
(4) Detention pending hearing for probationer. Pending arraignment for any charge of violation, the probationer shall be detained at a correctional facility unless issued a citation by a correctional officer. Thereafter, the court may release the probationer pursuant to 13 V.S.A. § 7554. There shall be no right to bail or release, unless the person is on probation for a nonviolent misdemeanor or nonviolent felony.
(5) Release of certain persons on probation for nonviolent offenses. su
(A) At arraignment, if the court finds that bail or conditions of release will reasonably ensure the probationer's appearance at future proceedings and conditions of release will reasonably protect the public, the court shall release a probationer who is on probation for a nonviolent misdemeanor or nonviolent felony pursuant to 13 V.S.A. § 7554.
(B) As used in this section:
(i) "Nonviolent felony" means a felony offense that is not a listed crime as defined in 13 V.S.A. § 5301(7) or an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64.
(ii) "Nonviolent misdemeanor" means a misdemeanor offense that is not a listed crime as defined in 13 V.S.A. § 5301(7) or an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64 or 13 V.S.A. § 1030. (Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48, § 2; 1997, No. 148 (Adj. Sess.), § 89, eff. April 29, 1998; 1997, No. 152 (Adj. Sess.), § 4; 2003, No. 57, § 10, eff. July 1, 2004; 2009, No. 157 (Adj. Sess.), § 5; 2017, No. 62, § 2; 2019, No. 131 (Adj. Sess.), § 283.)
§ 302. Notice; hearing
(a) The court shall not revoke probation without a proceeding conducted in open court. The procedure of such hearing shall include:
(1) the probationer has violated one or more conditions of probation;
(2) aprior written notice to the probationer stating the alleged violation with which he or she is charged and that he or she has a right to legal counsel at the hearing;
(3) the right to legal counsel if requested by the probationer to be assigned by the court in the same manner as in criminal cases;
(4) establishment of the alleged violation by a preponderance of the evidence by the State, if the probationer contests the allegation in open court;
(5) the maintenance of a record of the proceeding, which shall be preserved in such a manner that it can be transcribed as needed.
(b) An order revoking probation shall be appealable in the same manner as would be applicable to his or her original conviction.
(c) The State shall have the right to be represented by counsel in any revocation hearing. (Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48, § 3.)
§ 303. Grounds for revocation
(a) Probation shall not be revoked unless the probationer violates a condition of his or her probation or is convicted of another crime. The violation or conviction shall be both a necessary and a sufficient ground for the revocation of probation.
(b) The court shall not revoke probation and order the confinement of the probationer unless the court finds on the basis of the original offense and the intervening conduct of the probationer that:
(1) confinement is necessary to protect the community from further criminal activity by the probationer;
(2) the probationer is in need of correctional treatment which can most effectively be provided if he or she is confined; or
(3) it would unduly depreciate the seriousness of the violation if probation were not revoked. (Added 1971, No. 199 (Adj. Sess.), § 20.)
§ 304. Disposition alternatives upon violation of probation
(a) If a violation is established by a proceeding conducted in accordance with section 302 of this title, the court may, in its discretion, revoke probation and require the probationer to serve the sentence that was suspended or order that the sentence be served in the community pursuant to the provisions of chapter 6 of this title.
(b) As an alternative to revocation and imposition of sentence as provided in subsection (a) of this section, the court, in its discretion, after a violation has been established, may:
(1) continue the probationer on the existing sentence;
(2) effect, in accordance with subsection 253(b) of this title, necessary or desirable changes or enlargements in the conditions of probation;
(3) conduct a formal or informal conference with the probationer in order to reemphasize to him or her the necessity of compliance with the conditions of probation;
(4) issue a formal or informal warning to the probationer that further violations may result in revocation of probation by the court; or
(5) continue the probationer on the existing sentence, but require the probationer to serve any portion of the sentence.
(c) Prior to ordering either revocation or an alternative sanction for a violation of probation in accordance with subsection (b) of this section, the court shall consider, but has complete discretion whether to follow, sanction guidelines established by the Department of Corrections pursuant to subsection (e) of this section.
(d) No plea agreement shall limit the court's discretion under this section.
(e) The Department of Corrections shall adopt rules pursuant to 3 V.S.A. chapter 25 that establish graduated sanction guidelines for probation violations as an alternative to revocation and imposition of the original sentence. These guidelines do not grant the Department any authority to impose sanctions for probation violations. (Added 1971, No. 199 (Adj. Sess.), § 20; amended 1989, No. 291 (Adj. Sess.), § 5; amended 2001, No. 124 (Adj. Sess.), § 12, eff. June 5, 2002; 2005, No. 63, § 8.)
§ 305. Duration of alternative sentence
When a probationer who has paid a portion of a fine, as provided in subdivision 252(b)(7) of this title, is committed for a violation of the conditions of his or her probation, the amount so paid shall be stated in the mittimus and shall be taken into account in determining the expiration of the alternative sentence the same as though paid after commitment. (Added 1971, No. 199 (Adj. Sess.), § 20.)