2017 -- S 0008

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LC000232

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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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: January 11, 2017

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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

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

read as follows:

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

     (a) Application. - Except where the suspension of sentence shall otherwise be prohibited

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

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

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

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

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

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

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

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

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

where no sentence is imposed or where sentence is entirely suspended, may be for any period up

to the maximum time of sentence provided by applicable statutes. Where sentence is imposed and

suspended in part, the term ordered to be served and the period of probation together shall not

exceed the maximum time of sentence provided by applicable statutes.

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

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

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

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

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

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

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

or continuation of suspension.

     (a) Whenever any person who has been placed on probation pursuant to § 12-9-8 violates

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

authority shall inform the attorney general of the violation, and the attorney general shall cause

the defendant to appear before the court. The department of corrections court may request the

division of field rehabilitative services to shall promptly render a report relative to the conduct of

the defendant, and, pending receipt of the report, and the information contained in any report

under §12-13-24.1. The division of rehabilitative services may recommend that the time served

up to that point is a sufficient response to a violation that is not a new alleged crime. The court

may order the defendant held without bail for a period not exceeding ten (10) days, excluding

Saturdays, Sundays, and holidays.

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

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

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

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

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

presence of the defendant, may:

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

previously imposed, or on a lesser sentence, or :

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

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

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

may seem just and proper. ; or

     (5) Convert a sentence of probation without incarceration to a suspended sentence.

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

accordance with judicial sentencing benchmarks.

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

continuation of suspension.

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     (a) Whenever any person, who has been placed on probation by virtue of the suspension

of execution of his or her sentence pursuant to § 12-19-13, violates the terms and conditions of

his or her probation as fixed by the court, the police or department of corrections division of field

rehabilitative services shall cause the defendant to appear before the court. The court may require

the division of field rehabilitative services to shall promptly render a written report relative to the

conduct of the defendant, and, pending receipt of the report, and the information contained in any

report under §12-13-24.1. The division of rehabilitative services may recommend that the time

served up to that point is a sufficient response to a violation that is not a new alleged crime. The

court may order the defendant held without bail for a period not exceeding ten (10) days

excluding Saturdays, Sundays, and holidays.

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

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

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

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

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

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

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

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

seem just and proper. :

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

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

     (4) Continue the suspension of a sentence previously imposed; or

     (5) Convert a sentence of probation without incarceration to a suspended sentence.

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

sentence.

     The power of the court to commit the defendant shall not be deemed to terminate with the

termination of the period of the original sentence, but the court shall have power to enforce the

sentence even though the original period of the sentence has expired. The term of the suspended

sentence may be longer or shorter or for the same time as the probation period, and the time

during which the defendant is on probation shall not be deemed by §§ 12-19-13 -- 12-19-17 to be

a part of the term of his or her sentence, although the court, in its discretion, may give

consideration to the probationer's conduct during the probationary period in imposing a sanction

or enforcing the sentence originally imposed, or any lesser sentence.

     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

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

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

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

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

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

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

in which event the court may impose sentence.

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

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

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

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

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

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

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

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

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

by the court after a hearing to have complied with all of the terms and conditions of the deferral

agreement including, but not limited to, the payment in full of any court-ordered fines, fees, costs,

assessments, and restitution to victims of crime, then the person shall become immediately

eligible for consideration for expungement pursuant to the provisions of §§ 12-1.3-2 and 12-1.3-

3.

     12-19-34. Priority of restitution payments to victims of crime.

     (a) (1) If a person, pursuant to §§ 12-19-32, 12-19-32.1, or 12-19-33, is ordered to make

restitution in the form of monetary payment the court may order that it shall be made through the

administrative office of state courts which shall record all payments and pay the money to the

person injured in accordance with the order or with any modification of the order; provided, in

cases where court ordered restitution totals less than two hundred dollars ($200) the court

determines that the defendant has the present ability to make full restitution, payment shall be

made at the time of sentencing if the court determines that the defendant has the present ability to

make restitution.

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

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

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

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

prosecution.

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

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

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

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

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

of chapter 8-12.

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

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

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

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

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

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

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

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

federal law.

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

hereby amended by adding thereto the following sections:

     12-19-8.1. Conditions of probation.

     (a) The following shall constitute basic conditions of probation applicable to all

defendants upon whom a period of probation has been imposed:

     (1) Obey all laws;

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

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

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

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

telephone number, or employment;

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

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

appear in any Rhode Island court;

     (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

defendant’s ability to pay; and

     (9) Submit to a risk and needs assessment.

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

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

discretion of the court.

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

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

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

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

more effective supervision of the defendant.

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

violation.

     12-19-40. Severability.

     If any provision of this chapter or its application to any person or circumstances is held

invalid, that invalidity shall not affect other provisions or applications of the chapter which can be

given effect without the invalid provision or application, and to this end the provisions of this

chapter are declared to be severable.

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

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

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

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

of the effective date.

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