CHAPTER 38

PROBATION AND PROBATION REVOCATION

§ 38.01 Suspended Sentences

§ 38.02 Duration of Probation

§ 38.03 Deferred Sentences

§ 38.04 Conditions of Probation

§ 38.05 - Standard Conditions

§ 38.06 - Substantive Limitations on Probation Conditions

§ 38.07 - Modification of Probation Conditions

§ 38.08 - Appellate Challenges

§ 38.09 Restitution

§ 38.10 - Material Loss

§ 38.11 - Insured Loss

§ 38.12 - Loss Attributable to the Crime

§ 38.13 - Defendant's Ability To Pay

§ 38.14 Probation Violation Proceedings

§ 38.15 - The Violation of Probation Charge

§ 38.16 - The Preliminary Hearing

§ 38.17 - The Violation Hearing

§ 38.18 - The Disposition Hearing

§ 38.19 - Appeals

§ 38.01

Suspended Sentences

Instead of sentencing the defendant to actual incarceration, the judge, after announcing the sentence, "may suspend all or part of the sentence and place the person so sentenced in the care and custody of the commissioner [of corrections] upon such conditions and for such time as it may prescribe in accordance with law or until further order of court."{1} Most misdemeanor prison terms in Vermont are wholly or partly suspended and many felony sentences are as well.{2}

§ 38.02

Duration of Probation

Probation can be for a fixed period, after which the defendant is automatically discharged if no violation charges have been brought.{3} More commonly, however, the judge orders probation "until further order of court[,]" which keeps the defendant subject to probation until she is discharged, either on her own motion or (more commonly) on the probation officer's request to the judge.{4}

Termination of the probationary period (by discharge, or by expiration of a fixed period) relieves the probationer "of any obligations imposed by the order of the court. . . ."{4.5} There is an exception to this, however, when the defendant has been discharged from probation before he has served the unsuspended portion of a "split" sentence. In that unusual case the discharge does not relieve the defendant of the obligation to serve the prison term.{4.10}

The duration of "further order of court" probation is open-ended and bears no relation to the length of the suspended sentence; the defendant can be on probation for years subject to a suspended thirty-day sentence. Moreover, time spent on probation (unlike time spent on parole), is not "credited" in any way against the suspended sentence if probation is subsequently revoked; the defendant with a thirty-day suspended sentence can be made to serve the full thirty days no matter how long she has "served" on probation.

§ 38.03

Deferred Sentences

Instead of passing sentence and then suspending it, the judge can "defer" sentencing and place the defendant on probation, but the judge can do so only with the written agreement of the prosecutor.{5} Such deferred sentences, far less common than ordinary suspended sentences,{6} have the significant advantage that the defendant who successfully completes probation clears his criminal record; the court "shall strike the adjudication of guilt" and "the record of the criminal proceedings shall be expunged. . . ."{7}

In contrast to probation imposed in connection with a suspended sentence, "further order of the court" probation in a deferred sentence case is never open-ended. The probationary period expires at the end of five years, unless the deferred sentence agreement calls for a shorter period. After this period the sentence is automatically discharged if no violations have been charged.{8}

§ 38.04

Conditions of Probation

The judge has broad but not unlimited discretion in fixing the conditions of probation. The only universal and mandatory condition is that the defendant not be convicted of another criminal offense.{9} Otherwise the judge has a free hand: the conditions "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 him to do so."{10}

§ 38.05

- Standard Conditions

The standard probation conditions appearing in the probation statute{11} and the form probation warrant in use in the district courts{12} include specific obligations (such as periodically reporting to the probation officer) as well as much vaguer ones (such as living an orderly and industrious life and meeting family responsibilities). The form conditions - which although not legally mandatory (except for the no-new-conviction requirement) are imposed in virtually all probation cases - are as follows:

1. You shall not be convicted of another offense.

2. You shall work, seek employment or participate in vocational training to the full satisfaction of your probation officer.

3. You shall support yourself and your dependents and meet your family responsibilities.

4. You shall report to your probation officer in the manner and at such time and place as he/she may require.

5. You shall notify your probation officer within twenty-four hours of any change of address or employment.

6. You shall remain within the State unless granted permission to leave by your probation officer.

7. You shall permit a probation officer to visit you at your home or elsewhere.

8. You shall participate fully in any program to which you may be referred by the Court or your probation officer.

9. You shall live an orderly and industrious life.

10. You shall not engage in threatening, violent or assaultive behavior.

11. You shall not use alcoholic beverages to the extent that they interfere with your employment or the welfare of your family, yourself, or any other person.

12. You shall submit to an alcosensor test when requested by your probation officer or any other person authorized by your probation officer.

13. You shall not purchase, possess or consume regulated drugs unless prescribed for your use by a physician. You shall submit to urinalysis testing when requested by your probation officer or any other person authorized by your probation officer.

14. You shall not operate, attempt to operate or be in actual physical control of a motor vehicle on a public highway unless in possession of a valid Vermont operator's license.

The form order lists a number of additional "optional" conditions, which the judge can check off, including a ban on any alcohol use, participation in various treatment programs, and payment of fines and restitution.{13}

Although it is emphatically the judge, not the probation officer, who sets the conditions,{14} the Vermont Supreme Court allows probation officers substantial authority to specify and "fine tune" court-imposed conditions. A reporting requirement, for example, will not specify when or how often the probationer must report, and the officer can take care of those details; a condition that the probationer not associate with people designated by the probation officer is permissible in an appropriate case;{15} as is a requirement that the probationer complete a therapy program to his probation officer's satisfaction.{16}

The necessary authority to specify, however, can become a de facto power to impose new probation conditions. In State v. Duffy{17} the Vermont Supreme Court held that standard condition 8, "You shall participate fully in any program to which you may be referred by the Court or your probation officer[,]" empowered the probation officer to require the defendant's attendance in a psychotherapy program, even though the probation-granting court had not specifically ordered therapy as a condition of probation. The probation-granting court could either "leave the choice of rehabilitative programs to the discretion of the probation officer" or make the choice itself by "check[ing] the appropriate condition on the form."{18} A probation condition in State v. Peck{19} required the defendant to participate in and complete mental health counseling to his probation officer's satisfaction. The defendant's probation officer told him he would have to admit to sexual misconduct, and on his failure to do so he was held in violation; this failure to admit, the court held, "constituted a knowing failure to `complete counseling to the full satisfaction' of his probation officer."{20}

In State v. Moses,{21} the Vermont Supreme Court held that the sentencing judge had given too much power to the probation officer by requiring the defendant to reside where her officer directed her. Restrictions on residence were appropriate, the court said, but the condition as written gave "open-ended authority" to the probation officer, and this "wholesale delegation" was improper.{22}

§ 38.06

Substantive Limitations on Probation Conditions

a. Relationship to Rehabilitation

As a general matter probation conditions should not be "unduly restrictive of the probationer's personal liberty or autonomy[,]" and a condition will be found invalid if "(1) it has no relationship to the crime for which the defendant was convicted; (2) it relates to conduct which is not itself criminal; and (3) it requires or forbids conduct which is not reasonably related to future criminality."{23} Most conditions can satisfy this basic test, but in State v. Moses the Vermont Supreme Court found some that went too far: prohibiting the defendant from maintaining a checking account was unduly restrictive of her autonomy; requiring her to live where her probation officer directed delegated too much power to the officer;{24} and insisting that she consent to warrantless searches was an overbroad invasion of her privacy rights.{25}

b. The Right to Fair Notice

As a matter of due process, probation conditions may not be so vague or ambiguous that they fail to give the defendant fair notice of prohibited or required conduct.{26} Notice can be provided not only by the written conditions themselves, but by the judge's comments at sentencing, as well as by the probation officer's postsentencing directions.{27}

Conditions like the requirement to live an "orderly and industrious life," similar to some vagrancy statutes which have been found unconstitutionally vague,{28} are also subject to vagueness challenges, although the state could counter such claims with evidence that the probation officer spelled out the requirement more concretely.

c. Impossibility

Because probation is seen as a contract between the defendant and the court,{29} by which the defendant commits himself to a certain course of behavior, compliance can not be put beyond the defendant's control. In State v. Bubar,{30} the Vermont Supreme Court applied this principle to strike a condition that the defendant not be in the presence of a female person other than his wife unless another adult were present.{31} Similarly, the standard condition that the defendant not be convicted of a new crime cannot justify revocation when the defendant commits the "new" crime before being placed on probation, even though he was convicted of it afterwards.{32}

Ordering restitution and fines, or other fees, in amounts beyond the probationer's ability to pay - another kind of "impossible" condition - are discussed in another section.{33} The same considerations limit a judge's power to condition probation on the payment of fees which an indigent probationer cannot afford.{34}

d. Rights Against Self-Incrimination

A probation requirement that the defendant confess to crimes for which he may be separately prosecuted violates the privilege against self-incrimination.{35} A court therefore may not revoke probation for failure to participate in a sex therapy program, when the failure consists of a refusal to confess to crimes.{36} The privilege is not violated, however, when the requested admissions concern conduct for which the defendant cannot be criminally prosecuted (because of immunity or double jeopardy protections).{37}

e. Rights Against Search and Seizure

A number of frequently imposed probation conditions intrude directly into fourth amendment/article 11 protected areas, including standard conditions 7 ("permit a probation officer to visit you at your home or elsewhere") and 13 (urinalysis testing). Probationers retain the right against unreasonable searches and seizures but their legitimate expectations of privacy are diminished by their probationary status. In Griffin v. Wisconsin{38} the United States Supreme Court upheld a state regulation permitting warrantless searches of a probationer's home on "reasonable grounds." In State v. Moses,{39} however, the Vermont Supreme Court struck down a condition requiring the probationer to consent to "search and investigation without warrant when necessary[,]" because it gave no guidance and failed to "set a proper balance between the probationer's privacy rights and the state's special needs" in the probation context.{40}

f. First Amendment Rights

Conditions are not objectionable simply because they restrict first amendment rights, so long as they have "a reasonable nexus with rehabilitation of the defendant and protection of the public."{41} Courts have approved probationary limitations on association and even political action,{42} but required religious training probably goes too far.{43} In State v. Hamlin{44} the defendant argued that aspects of a sex offender program violated his religious beliefs. Avoiding the challenge on preservation grounds, the Vermont Supreme Court wrote that it would be sensitive to such free exercise claims, but that the defendant would have to show "the sincerity of his religious beliefs" and "the manner in which the challenged practice violates the tenets of his religion."{45} The court rejected a similar challenge in State v. Emery{46} on the ground that required therapy, which the defendant challenged as immoral, had only an incidental impact on religious freedom and was directly related to the defendant's rehabilitation.

§ 38.07

- Modification of Probation Conditions

By statute the judge can amend an initial probation order any time during the probationary period on the defendant's motion, the probation officer's application, or the judge's own motion.{47} The defendant has a right to a hearing and the assistance of counsel,{48} unless he has requested the modification and it is favorable to him.{49}

Because probation is seen as a contract between the court and the probationer, the court cannot impose more restrictive conditions over the defendant's objection unless the state establishes "a significant change in [the] probationer's circumstances[,]" although it may not be necessary to establish that the defendant has actually violated the original conditions.{50}

The judge's power to modify probation conditions may also be limited by a plea agreement.{51}

The judge loses power to modify conditions after the probationary period has expired.{52}

§ 38.08

- Appellate Challenges

The defendant can challenge an invalid condition by appeal after a motion to modify,{53} or on appeal from an order revoking probation, when the condition has been challenged at the revocation hearing.{54} Neither of these routes is a necessary first step, however, because the Vermont Supreme Court has made clear that invalid conditions can be challenged by direct appeal from the conviction.{55}

§ 38.09

Restitution

Courts can and frequently do order the defendant, as a condition of probation, to "[m]ake restitution or reparation to the victim of his conduct for the damage or injury which was sustained[,]"{56} and to "[p]ay a fine authorized in accordance with law. . . ."{57} Restitution must be considered whenever a crime victim has "suffered a material loss or incurred medical expenses."{58}

Fines go to the state; restitution goes to the victim or the victim's estate.{59} Fines can be ordered only if (and in the amount) specifically provided by the penal statute; restitution can be ordered whenever there is a material loss. A fine, when authorized, can be ordered independently of probation; restitution is permissible only as a condition of probation.{60}

§ 38.10

- Material Loss

Restitution may be ordered only for "material loss," a term which includes "only liquidated amounts which are easily ascertained and measured[,]" including hospital bills, property value, and lost employment income,{61} but not including awards for pain and suffering, lost earning capacity, emotional trauma, and wrongful death awards.{62}

§ 38.11

- Insured Loss

Losses which have been covered by insurance are generally not compensable by restitution, because the victim has already been compensated, and the insurance company is not considered a direct "victim" of the crime.{63} In an arson-for-insurance case, however, where insurance companies were the immediate and intended victims, restitution could be awarded to them.{64}

§ 38.12

- Loss Attributable to the Crime

The purpose of restitution is to compensate the victim for loss attributable to the defendant's crime.{65} The award "must relate to the damage caused by the criminal conduct for which the defendant was convicted";{66} other losses, for which the defendant may or may not also be responsible but which have not been causally linked to the crime of conviction, may not be added in.{67}

§ 38.13

- Defendant's Ability To Pay

Restitution may not be ordered in an amount greater than what the defendant is able to pay. This is a specific requirement of the restitution statutes,{68} and it is a constitutional requirement as well.{69} The sentencing court must make specific findings on the defendant's ability to pay, and fix both the amount and the manner of performance.{70} Generally the defendant makes periodic payments through the court or the probation office.

§ 38.14

Probation Violation Proceedings

As a matter of constitutional law, probation, like parole, is a form of conditional liberty which cannot be revoked without due process. In Gagnon v. Scarpelli{71} the United States Supreme Court spelled out the minimum procedural safeguards that states must observe at probation revocation hearings.{72} V.R.Cr.P. 32.1 and the probation statutes{73} implement and supplement Gagnon's requirements.

The Right to Counsel

Although Gagnon does not require counsel in every revocation case,{74} the defendant has the right to counsel at all stages of the revocation process under Rule 32.1 as well as the public defender and probation statutes.{75} As in all proceedings, however, it is the client who has ultimate control over the "subject matter" of the litigation.{76}

§ 38.15

- The Violation of Probation Charge

Probation is subject to revocation at any time after the date of sentencing, even before the probationary period begins.{76.5} Thereafter the defendant can be arrested with or without a warrant on probable cause to believe he has violated conditions of probation,{77} unless the probation has terminated before the charged violation is filed, in which case he is "relieved of any obligations imposed by the order of the court and shall have satisfied [his] sentence for the crime."{78} The formal charge is usually made in a form probation violation complaint, specifying the condition allegedly violated and setting forth the probation officer's sworn factual allegations.{79}

Stale Charges

The probation statutes do not require the charge of violation to be brought within any particular time. In State v. Ellis{80} the probation officer obtained an arrest warrant but took no steps to execute it for about a year. The Vermont Supreme Court found no statutory violation, and no "speedy trial" violation inasmuch as probation revocation proceedings are not governed by the sixth amendment.{81} Although the probationer has a due process right against oppressive delays, he must show "both that he suffered actual prejudice to the conduct of his defense and that the delay was intentional and caused by a desire to gain tactical advantage."{82} The state constitutional right against oppressive delays, not decided in Ellis,{83} may be less demanding.{84}

§ 38.16

- The Preliminary Hearing

Having been arrested and detained on a V.O.P. complaint the probationer is entitled to a "prompt hearing before a judicial officer in order to determine whether there is probable cause to hold him for a revocation hearing."{85} This preliminary hearing is analogous to a Rule 5 hearing for criminal charges, and the presumptive forty-eight-hour limit of Riverside County v. McLaughlin{86} may apply.{87}

The probationer has the rights to

(A) notice of the preliminary hearing and its purposes and of the alleged violation of probation;

(B) an opportunity to appear at the hearing and present evidence in his own behalf;

(C) upon request, the opportunity to question witnesses against him unless, for good cause, the judicial officer decides that justice does not require the appearance of the witness; and

(D) notice of his right to be represented by counsel and his right to assigned counsel if he is unable to obtain counsel.{88}

As at a Rule 5 hearing, the most important issue (aside from the probable cause question) is usually bail. Rule 32.1(a)(3) provides that the probationer "may be released" pending further proceedings, and that "[i]n determining conditions of release, the judicial officer shall consider the factors set forth in 13 V.S.A. § 7554(b)[,]" that is, the normal pretrial bail criteria.{89} Although probationers have no state constitutional right to bail (because they have been "sentenced"), single-justice opinions of the Vermont Supreme Court suggest a statutory right to release on the same basis as in ordinary criminal cases.{90}

§ 38.17

- The Violation Hearing

If probable cause is not found at the preliminary hearing, the probationer must be released and the complaint dismissed; otherwise the case proceeds to a merits hearing. The hearing must be held "within a reasonable time[,]"{91} but in some cases the defendant can insist that it be put off until after a related criminal trial.{92}

The merits stage has two distinct components, roughly corresponding to the trial and sentencing stages of a criminal case. The first step, the violation hearing, "involves a wholly retrospective factual question: whether the [probationer] has in fact acted in violation of one or more conditions of his [probation]."{93} If the court finds a violation, it must consider the question of disposition: "should the [probationer] be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?"{94}

Gagnon and the implementing statutes and rules provide for the following rights:{95}

Written notice of the alleged violation,{96} which is usually provided in the form of the probation violation complaint, App. 22.

Disclosure of the evidence supporting the charged violation,{97} usually in the form of the probation officer's affidavit, as supplemented by the normal discovery process.

The opportunity to appear and present evidence.{98} The opportunity to be present can be refused, however, and the formal in-person waiver requirements applicable to criminal trials do not apply to revocation hearings.{99}

The opportunity to question adverse witnesses.{100} The probationer's right of confrontation is not absolute and its extent has been the subject of dispute. Gagnon, tracking Morrissey, allows restrictions on the right of confrontation if the hearing officer specifically finds good cause.{101} Rule 32.1 appears broader: the probationer at the merits stage must be given "the opportunity to question witnesses against him" and only at the preliminary hearing stage may that right be restricted on a "good cause" finding.{102} Case law, however, has been less generous. In State v. Finch, the Vermont Supreme Court held that the rule provided no broader right of confrontation than Gagnon, and that "reliable hearsay can be admitted in a probation revocation proceeding and serve as the basis for revocation."{103} Finch, however, was overturned in a federal habeas corpus proceeding,{104} and subsequent Vermont Supreme Court case law has backed off from Finch's blanket authorization of "reliable" hearsay.{105}

A neutral and detached fact finder.{106}

The right to findings. Gagnon requires "a written statement by the factfinder[ ] as to the evidence relied on and the reasons for revoking [probation,]"{107} but transcribed oral findings are routine and the Vermont Supreme Court has held that they are good enough.{108}

The standard of proof is the minimum: a preponderance of evidence will suffice to find a violation,{109} and so "[i]f the State presents any credible evidence indicating a violation of conditions of probation, and the probationer remains silent, the State will necessarily have met its burden of proof. . . ."{110}

The Vermont Supreme Court has been reluctant to go beyond these core due process safeguards, stressing that the revocation hearing is not "a trial in any strict or formal sense" and that defendants do not enjoy "the full panoply of rights" applicable to criminal prosecutions.{111} For example, unconstitutionally obtained evidence which must be excluded from criminal trials may be admissible at probation revocation hearings,{112} and the fact finder may be able to draw inferences from the defendant's silence.{113} On the other hand, Gagnon and Rule 32.1 cannot be seen as an exhaustive list of the probationer's rights. The due process prohibition against trying an incompetent defendant, for example,{114} almost certainly applies to revocation hearings.{115}

§ 38.18

- The Disposition Hearing

If one or more violations is found, the court proceeds to the question of disposition. The judge can revoke probation and impose all or part of the suspended sentence; or continue the defendant on probation on the same terms or additional terms.{116} The decision, like other sentencing decisions, is broadly discretionary,{117} and the judge who imposes probation cannot limit his own or another judge's options in the event of a violation.{118}

Before the judge can impose sentence he or she must find that "[c]onfinement is necessary to protect the community[,]" or that "[t]he probationer is in need of correctional treatment which can most effectively be provided if he is confined;" or that "[i]t would unduly depreciate the seriousness of the violation if probation were not revoked."{119} Case law does not require these statutory findings in haec verba.{120}

Unlike sentencing in a criminal case, the Vermont Supreme Court has held that the defendant in a revocation proceeding has no formal right of allocution,{121} or to be present at the imposition of sentence.{122}

§ 38.19

- Appeals

The defendant can appeal an order revoking probation "in the same manner as would be applicable to his original conviction."{123} When the underlying conviction is for a nonviolent misdemeanor and the violation does not involve "a threat to public safety," the prison sentence will be automatically stayed pending appeal.{124}

1. 28 V.S.A. § 205. A partly suspended sentence is called a "split" sentence.

2. For misdemeanors handled by public defenders in fiscal year 1991, courts handed out a total of 3167 prison sentences, of which 1215 were either deferred or wholly suspended. For felonies during the same period the totals were 604 sentences, of which 184 were either deferred or wholly suspended. Fifteenth Annual Report of the Office of the Defender General (1992).

3. 28 V.S.A. § 255; State v. White, 150 Vt. 132 (1988). The same rule applies to deferred sentences. State v. Murray, No. 91-390 (Vt. Sept. 4, 1992).

4. 28 V.S.A. §§ 205, 251; Sherwin v. Hogan, 136 Vt. 606 (1979).

4.5. 28 V.S.A. § 255.

4.10. State v. Papazoni, No. 92-437 (Vt. Jan. 8, 1993).

5. 13 V.S.A. § 7041(a).

6. In public defender cases in fiscal year 1991 courts gave deferred sentences in only 60 felonies and 88 misdemeanors. Fifteenth Annual Report of the Office of the Defender General (1992).

7. 13 V.S.A. § 7041. Expungement of the conviction is also possible for defendants convicted before age 18. 33 V.S.A. § 5538(e). Courts also have inherent power to expunge arrest records. State v. Motchnik, 149 Vt. 113 (1987).

8. 13 V.S.A. § 7041(a) ("court may impose sentence at any time with five years from and after the date of entry of deferment"); State v. Murray, No. 91-390, slip op. 5-9 (Vt. Sept. 4, 1992) (five years is outer limit; parties can agree on less).

9. 28 V.S.A. § 252(a). The new offense must be committed after the probationary period begins; probation cannot be revoked for a postprobation conviction for a preprobation offense. State v. Hale, 137 Vt. 162, 164 (1979).

10. 28 V.S.A. § 252(a). See State v. Emery, 156 Vt. 364, 369 (1991); State v. Whitchurch, 155 Vt. 134, 137 (1990); State v. Gleason, 154 Vt. 205, 214 (1990) ("Courts possess great discretion in setting conditions of probation"); State v. Peck, 149 Vt. 617, 622-23 (1988).

11. 28 V.S.A. § 252(b).

12. App. 21.

13. See App. 21, 14-22.

14. 28 V.S.A. §§ 201 (probation defined as procedure under which defendant is released "subject to conditions imposed by the court"); 252(a) ("conditions of probation shall be such as the court in its discretion deems reasonably necessary").

15. State v. Moses, No. 91-117, slip op. 4 (Vt. Oct. 23, 1992).

16. State v. Moses, No. 91-117, slip op. 7 (Vt. Oct. 23, 1992); State v. Sanborn, 155 Vt. 430, 432-35 (1990).

17. 151 Vt. 473 (1989).

18. State v. Duffy, 151 Vt. 473, 478 (1989).

19. 149 Vt. 617 (1988).

20. State v. Peck, 149 Vt. 617, 620 (1988). For similar holdings see State v. Mace, 154 Vt. 430, 433-35 (1990); State v. Gleason, 154 Vt. 205, 215-16 (1990); and State v. Foster, 151 Vt. 442, 446-47 (1989).

21. No. 91-117 (Vt. Oct. 23, 1992).

22. State v. Moses, No. 91-117, slip op. 6-9 (Vt. Oct. 23, 1992).

23. State v. Whitchurch, 155 Vt. 134, 137 (1990) (citing People v. Lent, 541 P.2d 545, 548 (Cal. 1975), and ABA Standards for Criminal Justice § 18-2.3 (emphasis added)). See State v. Moses, No. 91-117, slip op. 3 (Vt. Oct. 23, 1992); State v. Emery, 156 Vt. 364, 369 (1991).

24. See § 38.05, supra.

25. See § 38.06(e), infra.

26. State v. Emery, 156 Vt. 364, 372-73 (1991); State v. Gleason, 154 Vt. 205, 216 (1990); State v. Peck, 149 Vt. 617, 619 (1988).

27. State v. Emery, 156 Vt. 364, 372-73 (1991); State v. Mace, 154 Vt. 430, 433-35 (1990); State v. Gleason, 154 Vt. 205, 216 (1990); State v. Peck, 149 Vt. 617, 620-21 (1988).

28. See § 16.01.

29. State v. Murray, No. 91-390, slip op. 8 (Vt. Sept. 4, 1992); State v. Duffy, 151 Vt. 473, 477 (1989); Sherwin v. Hogan, 136 Vt. 606, 609 (1979).

30. 146 Vt. 398 (1985).

31. State v. Bubar, 146 Vt. 398, 405 (1985).

32. State v. Hale, 137 Vt. 162 (1979).

33. § 38.09, infra.

34. See State v. Pascoe, No. 91-054 (Vt. June 18, 1992) (mem.) (same); State v. License, No. 88-201 (Vt. Jan. 16, 1991) (mem.) (claim that defendant could not afford fee for CRASH program, not supported by record); State v. Foster, 151 Vt. 442, 447 (1989) (claim that defendant could not afford counseling fees not supported).

35. See Minnesota v. Murphy, 465 U.S. 420, 435 (1984).

36. Mace v. Amestoy, 765 F. Supp. 847 (D. Vt. 1991). But see Asherman v. Meachum, 957 F.2d 978 (2d Cir. 1992) (state could revoke defendant's house arrest status when he refused to participate in interview on fifth amendment grounds).

37. State v. Gleason, 154 Vt. 205, 210-14 (1990); State v. Peck, 149 Vt. 617, 622 (1988).

38. 483 U.S. 868 (1987).

39. No. 91-117 (Vt. Oct. 23, 1992).

40. State v. Moses, No. 91-117, slip op. 12-13 (Vt. Oct. 23, 1992). Justice Morse, in a concurring and dissenting opinion, expressed the view that a defendant's probationary status does not justify warrantless searches without a particularized showing of "special needs." Id. at 6-7.

41. State v. Emery, 156 Vt. 364, 369 (1991); State v. Mace, 154 Vt. 430, 436 (1990), overturned on other grounds, Mace v. Amestoy, 765 F. Supp. 847 (D. Vt. 1991). This standard seems no different from the test for probation conditions which do not restrict basic rights, but first amendment restrictions are subject to "special scrutiny." Emery, 156 Vt. at 369-70.

42. See, e.g., United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988).

43. State v. Emery, 156 Vt. 364, 370 n.* (1991) (condition which directly requires or prohibits religious conduct may need to be justified by compelling state interest). See also Owens v. Kelly, 681 F.2d 1362, 1365 (11th Cir. 1982).

44. 148 Vt. 232 (1987).

45. State v. Hamlin, 148 Vt. 232, 233 (1987). Hamlin was a prisoner, not a probationer, but there is no reason why the court would treat a similar claim by a probationer any differently.

46. 156 Vt. 364, 370-71 (1991).

47. 28 V.S.A. § 253(a); State v. Day, 147 Vt. 93, 96 (1986).

48. 28 V.S.A. § 253(b); State v. Day, 147 Vt. 93, 96 (1986).

49. V.R.Cr.P. 32.1(b).

50. State v. Day, 147 Vt. 93, 96-97 (1986).

51. State v. Day, 147 Vt. 93, 95 (1986) (terms of agreement did not limit court's power to impose additional conditions on motion to modify).

52. State v. White, 150 Vt. 132, 134 (1988). Nor may a court retrospectively extend the probationary period itself. State v. Murray, No. 91-390 (Vt. Sept. 4, 1992).

53. See State v. Whitchurch, 155 Vt. 134, 135-36 (1990).

54. See, e.g., State v. Peck, 149 Vt. 617 (1988) (reaching merits of a claim that a probation condition was not reasonably related to crime of conviction, raised for first time in a revocation hearing). But see State v. Gleason, 154 Vt. 205, 210 n.2 (1990) ("We leave open the question whether raising an issue at the revocation hearing will preserve the issue for appeal").

55. State v. Moses, No. 91-117, slip op. 8 (Vt. Oct. 23, 1992) (overbroad conviction will be stricken even though defendant could seek court intervention), id. at 9-10 (defendant can appeal overbroad consent-to-search condition without waiting for an illegal search). See also State v. Bubar, 146 Vt. 398, 405 (1985).

56. 28 V.S.A. § 252(b)(6).

57. 28 V.S.A. § 252(b)(7).

58. 13 V.S.A. § 7043(a).

59. 13 V.S.A. § 7043(d).

60. It may be the only condition of probation. 13 V.S.A. § 7043(a).

61. State v. Jarvis, 146 Vt. 636, 638-39 (1986). Restitution can also be awarded for loss of future business income if "easily ascertained. . . ." State v. McElreavy, No. 91-541, slip op. 1 (Vt. July 17, 1992) (mem.).

62. State v. Jarvis, 146 Vt. 636, 638-39 (1986). Such awards will be enforced if they are made part of a plea agreement. In re Fadden, 148 Vt. 116, 118, 121 (1987).

63. State v. Webb, 151 Vt. 200 (1989). Of course, this limitation does not preclude civil liability for insured losses.

64. State v. Bonfanti, 157 Vt. 625, 628-29 (1991).

65. 13 V.S.A. § 7043(b).

66. State v. Knapp, 147 Vt. 56, 60 (1986).

67. State v. Stimpson, 151 Vt. 645 (1989) (mem.); State v. Knapp, 147 Vt. 56, 60 (1986); State v. Curtis, 140 Vt. 621, 622 (1982).

68. 28 V.S.A. § 252(b)(6); 13 V.S.A. § 7043(c). See State v. Benoit, 131 Vt. 631 (1973); State v. Godfrey, 131 Vt. 629 (1971).

69. Bearden v. Georgia, 461 U.S. 660, 668-69 (1983). A court also may not sentence a defendant to prison for inability to pay a fine. See § 37.20, supra.

70. State v. Sausville, 151 Vt. 120, 121 (1989); State v. Curtis, 140 Vt. 621, 622-23 (1982); 28 V.S.A. § 252(b)(6). Sausville holds that findings on ability to pay are required even when the amount of restitution is specified in a plea agreement.

71. 411 U.S. 778 (1973).

72. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).

73. See generally 28 V.S.A. §§ 301-05.

74. Gagnon v. Scarpelli, 411 U.S. 778, 787-91 (1973) (right to counsel on a case-by-case basis).

75. V.R.Cr.P. 32.1(1)(D),(2)(E); 13 V.S.A. § 5231; 28 V.S.A. § 302(a)(3).

76. State v. Duffy, 151 Vt. 473, 479 (1989) (probationer in midst of revocation hearing told judge he wanted to "go back and do my time" even though judge offered him continued probation).

76.5. State v. St. Francis, No. 92-341 (Vt. June 11, 1993).

77. 28 V.S.A. § 301(1),(2); V.R.Cr.P. 32.1(1). Statutory provisions which appear to authorize arrest without probable cause to suspect a violation, see 28 V.S.A. §§ 203(c), 301(4), have been superseded by Gagnon and Rule 32.1.

78. 28 V.S.A. § 255. See State v. Murray, No. 91-390 (Vt. Sept. 4, 1992); State v. White, 150 Vt. 132 (1988). A discharge from probation does not relieve the defendant of the obligation to serve a split sentence. State v. Papazoni, No. 92-437 (Vt. Jan. 8, 1993).

79. See App. 22.

80. 149 Vt. 264 (1988).

81. State v. Ellis, 149 Vt. 264, 266-267 (1988).

82. State v. Ellis, 149 Vt. 264, 267-268 (1988) (citing United States v. Marion, 404 U.S. 307, 324 (1971)).

83. State v. Ellis, 149 Vt. 264, 267 n.2 (1988).

84. See § 12.11.

85. V.R.Cr.P. 32.1(a)(1).

86. 111 S. Ct. 1661 (1991). See § 5.17 (charge).

87. The pre-McLaughlin Reporter's Notes to Rule 32.1 explain the "prompt hearing requirement" as "a standard derived from Gagnon and akin to the `without unreasonable delay' standard of Rules 3(a) and 4(f)(2)(C)."

88. V.R.Cr.P. 32.1(a)(1).

89. See §§ 7.02-7.05 (bail).

90. State v. Maxfield, No. 89-378 (Vt. July 31, 1989) (Morse, J.); State v. Vezina, No. 89-004 (Vt. Jan. 12, 1989) (Dooley, J.). But see State v. Bushey, No. 92-333 (Vt. July 13, 1992) (mem.) (trial court has discretion to hold defendant without bail on probation violation charge). See § 7.10 (bail).

91. V.R.Cr.P. 32.1(a)(2).

92. State v. Begins, 147 Vt. 295 (1986). See § 30.04.

93. Gagnon v. Scarpelli, 411 U.S. 778, 784 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 479-80 (1972)).

94. Gagnon v. Scarpelli, 411 U.S. 778, 784 (1973).

95. See generally Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).

96. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); 28 V.S.A. § 302(a)(2); V.R.Cr.P. 32.1(a)(2)(A).

97. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); V.R.Cr.P. 32.1(a)(2)(B).

98. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); V.R.Cr.P. 32.1(a)(2)(C).

99. State v. Kasper, 152 Vt. 435, 438-40 (1989).

100. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); V.R.Cr.P. 32.1(a)(2)(D).

101. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).

102. Compare Rule 32.1(a)(1)(C) with 32.1(a)(2)(D). The Reporter's Notes say that (1)(C)'s "good cause exception is intended to be used sparingly - for example, in instances where disclosure of the identity of an informer would expose him to an unreasonable risk of harm."

103. State v. Finch, 153 Vt. 216, 218 (1989). See also State v. Schroeder, 149 Vt. 163 (1987) (holding that probation can be revoked on the basis of unrebutted hearsay).

104. Finch v. Vermont District Court, Civil Action No. 90-9 (D. Vt. Sept. 24, 1990), adopting Magistrate's Report and Recommendation (Aug. 23, 1990) (Niedermeyer, J.M.) (unpublished), cited in Watker v. Parole Board, 157 Vt. 72, 81 (1991) (Dooley, J., dissenting).

105. See State v. Gardner, No. 91-398 (Vt. March 13, 1992) (mem.) (probation officer's hearsay too attenuated to be found reliable); State v. Dashnow, 91-195 (Vt. Aug. 29, 1991) (affirming revocation "[g]iven the strong nonhearsay evidence"); Watker v. Parole Board, 157 Vt. 72, 78-79 (1991) (confrontation claim waived), id. at 81-83 (Dooley, J., dissenting) (state must make good faith effort to produce live witnesses).

106. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). See State v. Daudelin, 151 Vt. 214 (1989) (trial judge expressed view of facts before hearing evidence in V.O.P. hearing; error "was momentary and nonprejudicial" reflecting no bias).

107. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); see also Black v. Romano, 471 U.S. 606, 612 (1985).

108. State v. Allen, 146 Vt. 569, 597-98 (1986).

109. 28 V.S.A. § 302(a)(4).

110. State v. Begins, 147 Vt. 295, 297 (1986).

111. State v. Kasper, 152 Vt. 435, 439 (1989).

112. State v. Moses, No. 91-117, slip op. 9-10 (Vt. Oct. 23, 1992) (noting that many courts have ruled that illegally seized evidence can be admitted in revocation proceedings); State v. Steinhour, No. 91-096 (Vt. April 3, 1992) (privilege against self-incrimination does not bar evidence in revocation proceedings).

113. State v. Begins, 147 Vt. 295, 297 (1986) (dictum) (citing Baxter v. Vermont Parole Board, 145 Vt. 644, 647-49 (1985)).

114. See chapter 8.

115. See State v. Bilodeau, 84-382 (Oct. 7, 1985) (mem.); State v. Tomkins, No. 88-586 (July 2, 1990) (mem.).

116. 28 V.S.A. § 304(a),(b). On the option of imposing less than the full suspended sentence, see State v. Schneider, No. 90-375 (Vt. Jan. 6, 1992) (unpublished); V.R.Cr.P. 35(b), Reporter's Notes.

117. If one or more but less than all violations are vacated on appeal, the defendant is entitled to resentencing, because the supreme court "cannot know what sentence might have been imposed" on the basis of proper findings. State v. Higgins, 147 Vt. 506, 508 (1986) (per curiam).

118. State v. Burt, No. 84-494 (Vt. May 9, 1986) (unpublished).

119. 28 V.S.A. § 303(b). A statement of reasons is also a due process requirement. Black v. Romano, 471 U.S. 606, 612 (1985); Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).

120. State v. Millard, 149 Vt. 384, 387 (1988) (court need not identify which of the statutory criteria applies so long as at least one readily supports its decision); State v. Allen, 145 Vt. 593, 598 (1985) (finding that defendant had severe alcohol problem and probation could not help him).

121. State v. Germaine, 152 Vt. 106 (1989).

122. State v. Germaine, 152 Vt. 106, 108 (1989) (approving revocation and imposition of sentence by written opinion).

123. 28 V.S.A. § 302(b).

124. See § 7.20, supra.