2016 -- S 2938

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LC005570

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

     RELATING TO CRIMINAL PROCEDURE -- SENTENCE AND EXECUTION

     

     Introduced By: Senators McCaffrey, Conley, Lombardi, Lynch Prata, and Metts

     Date Introduced: May 03, 2016

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 12-19-8, 12-19-9, 12-19-14, 12-19-15, 12-19-19 and 12-19-34 of

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the General Laws in Chapter 12-19 entitled "Sentence and Execution" are hereby amended to

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read as follows:

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     12-19-8. Suspension of sentence and probation by superior or district court. -- (a)

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Application. - Except where the suspension of sentence shall otherwise be prohibited by law, and

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subject to the purposes and limits imposed by this section and §12-19-8.1, whenever any

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defendant shall appear for sentence before the superior or district court, the court may impose a

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sentence and suspend the execution of the sentence, in whole or in part, or place the defendant on

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probation without the imposition of a suspended sentence. The suspension shall place the

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defendant on probation for the time and on any terms and conditions of probation that the court

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may fix and pursuant to the terms and conditions set by §12-19-8.1.

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      (b) Duration. - The period of probation for a felony shall be set for a period of time as

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required by law, or in accordance with judicial sentencing benchmarks. , where no sentence is

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imposed or where sentence is entirely suspended, The period of probation for a misdemeanor may

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be for any period up to the maximum time of sentence provided by applicable statutes. Where

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sentence is imposed and suspended in part, the term ordered to be served and the period of

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probation together shall not exceed the maximum time of sentence provided by applicable

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statutes.

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      (c) At any time during the term of a sentence imposed, the probation and parole unit of

 

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the department of corrections may seek permission of the superior or district court to modify a

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defendant's conditions of probation set at the time of sentence by either imposing additional

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conditions of probation or removing previously imposed conditions of probation to provide for

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more effective supervision of the defendant. Failure of the defendant to comply with modified

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conditions of probation may result in a violation of probation being filed pursuant to § 12-19-9.

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     12-19-9. Violation of terms of probation -- Notice to attorney general -- Revocation

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or continuation of suspension. -- (a) Whenever any person who has been placed on probation

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pursuant to § 12-9-8 violates the terms and conditions of his or her probation as fixed by the

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court, the police or the probation authority shall inform the attorney general of the violation, and

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the attorney general shall cause the defendant to appear before the court. The department of

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corrections court may request the division of field rehabilitative services to shall promptly render

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a report relative to the conduct of the defendant, and, pending receipt of the report, and the

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information contained in any report under §12-13-24.1. The division of rehabilitative services

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may recommend that the time served up to that point is a sufficient response to a violation that is

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not a new alleged crime. The court may order the defendant held without bail for a period not

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exceeding ten (10) days, excluding Saturdays, Sundays, and holidays.

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     (b) The court shall conduct a hearing within thirty (30) days of arrest unless waived by

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the defendant to determine whether the defendant has violated the terms and conditions of his or

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her probation, at which hearing the defendant shall have the opportunity to be present and to

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respond. Upon a determination by a fair preponderance of the evidence that the defendant has

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violated the terms and conditions of his or her probation the court, in open court and in the

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presence of the defendant, may:

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     (1) Remove remove the suspension and order the defendant committed on the sentence

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previously imposed, or on a lesser sentence, or;

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     (2) Impose impose a sentence if one has not been previously imposed, or may;

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     (3) Stay all or a portion of the sentence imposed after removal of the suspension;

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     (4) Continue continue the suspension of a sentence previously imposed, as to the court

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may seem just and proper.; or

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     (5) Convert straight probation to a suspended sentence.

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     (c) The court shall sentence for a violation under subsection (b) of this section in

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accordance with judicial sentencing benchmarks.

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     12-19-14. Violation of terms of probation -- Notice to court -- Revocation or

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continuation of suspension. -- (a) Whenever any person, who has been placed on probation by

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virtue of the suspension of execution of his or her sentence pursuant to § 12-19-13, violates the

 

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terms and conditions of his or her probation as fixed by the court, the police or department of

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corrections division of field rehabilitative services shall cause the defendant to appear before the

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court. The court may require the division of field rehabilitative services to shall promptly render a

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written report relative to the conduct of the defendant, and, pending receipt of the report, and the

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information contained in any report under §12-13-24.1. The division of rehabilitative services

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may recommend that the time served up to that point is a sufficient response to a violation that is

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not a new alleged crime. The court may order the defendant held without bail for a period not

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exceeding ten (10) days excluding Saturdays, Sundays, and holidays.

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     (b) The court shall conduct a hearing within thirty (30) days of arrest unless waived by

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the defendant to determine whether the defendant has violated the terms and conditions of his or

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her probation, at which hearing the defendant shall have the opportunity to be present and to

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respond. Upon a determination by a fair preponderance of the evidence that the defendant has

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violated the terms and conditions of his or her probation the court, in open court and in the

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presence of the defendant, may as to the court may seem just and proper.

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     (1) Revoke revoke the suspension and order the defendant committed on the sentence

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previously imposed, or on a lesser sentence, or may continue the suspension as to the court may

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seem just and proper.

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     (2) Impose a sentence if one has not been previously imposed;

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     (3) Stay all or a portion of the sentence imposed after removal of the suspension.

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     12-19-15. Term of probation -- Power to commit after termination of original

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sentence Term of suspended sentence and probation. -- The power of the court to commit the

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defendant shall not be deemed to terminate with the termination of the period of the original

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sentence, but the court shall have power to enforce the sentence even though the original period

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of the sentence has expired. The term of the suspended sentence may be longer or shorter or for

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the same time as the probation period, and the time during which the defendant is on probation

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shall not be deemed by §§ 12-19-13 -- 12-19-17 to be a part of the term of his or her sentence,

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although the court, in its discretion, may give consideration to the probationer's conduct during

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the probationary period in imposing a sanction or enforcing the sentence originally imposed, or

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any lesser sentence.

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     12-19-19. Sentencing on plea of guilty or nolo contendere -- Deferment of sentence. -

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- (a) Whenever any person is arraigned before the superior court and pleads guilty or nolo

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contendere, he or she may be at any time sentenced by the court; provided, that if at any time the

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court formally defers sentencing then the person and the attorney general court shall enter into a

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written deferral agreement to be filed with the clerk of the court. When a court formally defers

 

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sentence, the court may only impose sentence within up to five (5) years from and after the date

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of the written deferral agreement, unless during the five (5) year required period, the person shall

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be declared to have violated the terms and conditions of the deferment pursuant to subsection (b)

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of this section in which event the court may impose sentence.

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      (b) It shall be an express condition of any deferment of sentence in accordance with this

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section The court may require that the person agreeing to said deferment of sentence shall not

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violate any condition of the written deferral agreement at all times during the period of deferment

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keep the peace and be of good behavior. A violation of this express condition or any other

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condition set forth by either the court or the written deferral agreement shall violate the terms and

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conditions of the deferment of sentence and the court may impose a sanction or impose sentence.

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The determination of whether a violation has occurred shall be made by the court in accordance

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with procedures relating to violation of probation in court rules and §§ 12-19-2 and 12-19-14.

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      (c) If a person, after the completion of the five (5) year deferment period is determined

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by the court to have complied with all of the terms and conditions of the written deferral

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agreement, then the person shall be exonerated of the charges for which sentence was deferred

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and records relating to the criminal complaint, information or indictment shall be sealed pursuant

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to the provision of § 12-1-12. Further, if any record of the criminal complaint, information or

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indictment has been entered into a docket or alphabetical index, whether in writing or electronic

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information storage or other data compilation system, all references to the identity of the person

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charged by the complaint shall be sealed.

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     12-19-34. Priority of restitution payments to victims of crime. -- (a) (1) If a person,

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pursuant to §§ 12-19-32, 12-19-32.1, or 12-19-33, is ordered to make restitution in the form of

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monetary payment the court may order that it shall be made through the administrative office of

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state courts which shall record all payments and pay the money to the person injured in

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accordance with the order or with any modification of the order; provided, in cases where court

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ordered restitution totals less than two hundred dollars ($200) the court determines that the

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defendant has the present ability to make full restitution, payment shall be made at the time of

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sentencing if the court determines that the defendant has the present ability to make restitution.

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      (2) Payments made on account when both restitution to a third-party is ordered, and

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court costs, fines, and fees, and assessments related to prosecution are owed, shall be disbursed

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by the administrative office of the state courts in the following priorities:

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      (i) Upon determination of restitution, court ordered restitution payments shall be paid

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first to persons injured until such time as the court's restitution is fully satisfied;

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      (ii) Followed by the payment of court costs, fines, fees, and assessments related to

 

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prosecution.

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      (3) Notwithstanding any other provision of law, any interest which has been accrued by

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the restitution account in the central registry shall be deposited on a regular basis into the crime

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victim compensation fund, established by chapter 25 of this title. In the event that the office of the

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administrator of the state courts cannot locate the person or persons to whom restitution is to be

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made, the principal of the restitution payment shall escheat to the state pursuant to the provisions

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of chapter 8-12.

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      (b) The state is authorized to develop rules and/or regulations relating to assessment,

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collection, and disbursement of restitution payments when any of the following events occur:

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      (1) The defendant is incarcerated or on home confinement or has completed probation

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without completing restitution but is able to pay some portion of the restitution; or

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      (2) The victim dies before restitution payments are completed.

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      (c) The state may maintain a civil action to place a lien on the personal or real property

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of a defendant who is assessed restitution, as well as to seek wage garnishment, and/or seek

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enforcement of civil judgment entered in accordance with §12-28-5.1 consistent with state and

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federal law.

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     SECTION 2. Chapter 12-19 of the General Laws entitled "Sentence and Execution" is

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hereby amended by adding thereto the following section:

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     12-19-8.1. Conditions of probation. -- (a) The following shall constitute basic

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conditions of probation applicable to all defendants upon whom a period of probation has been

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imposed:

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     (1) Obey all laws;

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     (2) Report to the probation officer and parole officer as directed;

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     (3) Remain within the state of Rhode Island except with the prior approval, specifically

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or as an agreed routine, of the probation and parole office;

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     (4) Notify the probation and parole officer immediately of any change of address,

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telephone number, or employment;

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     (5) Make every effort to keep steadily employed or attend school or vocational training;

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     (6) Waive extradition from anywhere in the United States to Rhode Island, if required to

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appear in any Rhode Island court;

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     (7) Provide a DNA sample if required by §§12-1.5-7 and 12-1.5-8;

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     (8) Pay restitution, court costs, and fines, if assessed, in one or several sums, based on the

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defendant’s ability to pay; and

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     (9) Submit to a risk and needs assessment.

 

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     (b) Special probation conditions related to community service, computer restrictions, no

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contact orders, or any other conditions deemed just and reasonable may be imposed at the

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discretion of the court.

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     (c) At any time during the term of a sentence imposed, the probation and parole unit of

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the department of corrections may seek permission of the superior or district court to modify a

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defendant's basic conditions or special conditions of treatment or counseling by either imposing

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additional conditions or removing previously imposed conditions of probation to provide for

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more effective supervision of the defendant.

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     (d) Failure of the defendant to comply with modified conditions of probation constitutes a

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violation.

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     12-19-40. Severability. -- If any provision of this chapter or its application to any person

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or circumstances is held invalid, that invalidity shall not affect other provisions or applications of

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the chapter which can be given effect without the invalid provision or application, and to this end

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the provisions of this chapter are declared to be severable.

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     SECTION 3. This act shall take effect upon passage and shall be applicable to all cases

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pending as of the effective date.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

     RELATING TO CRIMINAL PROCEDURE -- SENTENCE AND EXECUTION

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     This act would make several changes to the sentencing and execution guidelines for

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purposes of criminal procedure and would add new conditions of criminal probation.

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     This act would take effect upon passage and would be applicable to all cases pending as

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of the effective date.

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