Albuquerque Criminal Lawyer Blog

The New Mexico Supreme Court case of State v. Guthrie addresses the rights of defendants in probation violation hearings to due process and confrontation of the State's witnesses. The court determined that the rights of probationers in probation violation hearings were measured on a "sliding scale with extremes at either end and much balancing and weighing of competing interests in between."

The facts of the Guthrie case are pretty straightforward. The defendant failed to complete a residential treatment program required under the terms of his probation. The probation officer that filed the probation violation report had been relocated and was unable to attend the hearing. In her place, her supervisor testified to the contents for her report and the contents of the probation file. The supervisor had no direct knowledge of the probation violation and had never met or spoken with the defendant or the residential treatment facility.

The defendant did not dispute that he had not completed treatment and it was taken as an undisputed fact. The defendant's objections at the probation hearing were strictly related to the violation of his right to confront and cross examine his probation officer. The district court found the evidence of violation sufficient for the revocation of defendant's probation. The defendant filed an appeal arguing a violation of due process and his right to confrontation of witnesses.

The Court cited the U.S. Supreme Court Morrissey v. Brewer for the proposition that probation revocation hearings are rather informal depriving a defendant not of an absolute liberty but only a conditional liberty under the terms of probation. Because revocation of probation addresses on conditional liberties, the Court reasoned that the full spectrum of criminal trial rights do not apply.

Under Morrissey, live testimony of probation officers is not always required. Instead, the court may rely on a variety of hearsay evidence such as affidavits, depositions, and documentary evidence. The Court stated further that it had no intention of preventing the State "from developing other creative solutions" suggesting ever greater latitude for courts and prosecutors in probation violation settings.

In short, the Court in Guthrie found that the live testimony of the defendant's probation officer was not necessary. The Court also emphasized that whether or not defendant completed treatment was a simple factual determination not susceptible to subjective interpretation. The failure of the defendant to offer any rebuttal evidence to suggest otherwise weighed heavily on the Court's ruling. The Court suggested that due process and the right to confrontation might require live testimony where the violation of probation was in dispute and/or relied on more subjective criteria.

The specific findings of the case are not so troubling as the broad parameters the Court set forth for probation violations. As it stands, the due process and confrontation rights of probationers are tenuous at best. After all, a sliding scale of justice with creative prosecution is not where a defendant would like to be.

Collins & Collins, P.C.
Albuquerque Attorneys

Under New Mexico law, the courts maintain jurisdiction over criminal cases for the duration of the probationary period. It was made clear in the New Mexico Court of Appeals case of State v. Jose Alfredo Ordunez that once the probationary period has lapsed, the court loses jurisdiction over the defendant.

The Ordunez case held that any action by the state for violations of probation must be filed within the probationary period. As such, once the probationary period has lapsed, the State is barred from filing for a revocation of probation. In fact, this is what occurred in Ordunez. The State failed to file for revocation of probation prior to the end of the defendant's probationary period thereby defeating the court's jurisdiction.

Though not pivotal to the outcome of the case, the court also addressed the issue of tolling of the jurisdictional limits when a defendant absconds from justice. In other words, the court addressed what happens when the defendant disappears following a probation violation for which revocation could be filed.

As an aside, disappearing while on probation is typically itself a violation of probation. More often, a separate violation of probation precipitates the disappearance due to defendant's knowledge of the coming probation revocation and possible incarceration. There are defendants who mistakenly believe that if they disappear long enough for their probation to end, they are somehow off the hook.

The Court in Ordunez cited both statute and case law to the contrary. NMSA §31-21-15(C) states:

"if it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that he has violated the provisions of his release, the court shall determine whether the time from the date of violation to the date of his arrest, or any part of it, shall be counted as time served on probation."

It is clear from the language of the statute as well as the Court's language in Ordunez among other cases that "a probationer cannot defeat the district court's jurisdiction merely by remaining a fugitive from justice until he probation period has run."

In short, as unpleasant as it may be, a violation of probation must be dealt with by a defendant. In fact, as many have found, the consequences of running from the violation are often more serious than the violation itself.

Collins & Collins, P.C.
Albuquerque Attorneys