Section 28.36 Final Hearing on Revocation

• Library: Criminal Practice 2012 Supp

C. (§28.36) Final Hearing on Revocation

“A violation of the conditions [of probation] in not a criminal offense, and a proceeding to revoke obviously is not a criminal prosecution within the constitutional provisions.” State v. Sapp, 55 S.W.3d 382, 383 (Mo. App. W.D. 2001) (quoting State v. Brantley, 353 S.W.2d 793, 796 (Mo. 1962), and citing State v. Haynes, 17 S.W.3d 617 (Mo. App. W.D. 2000)). The purpose of the “hearing is not to determine whether the probationer is guilty of the allegations which may possibly result in revocation of his probation but is for the purpose of determining whether or not termination of probation is ‘warranted by the conduct of defendant and the ends of justice.’” Sapp, 55 S.W.3d at 383 (quoting Abell v. State, 606 S.W.2d 198, 203 (Mo. App. E.D. 1980), cert. denied, 451 U.S. 939 (1981) (Dowd, J., dissenting)). Therefore, the following are “minimal due process” requirements generally applied to the final hearing on revocation:

· The final hearing must be held within a reasonably short period after the preliminary hearing except in a situation when a person is serving a new sentence. Moody v. Daggett, 429 U.S. 78 (1976). In many jurisdictions, it is considered acceptable practice to wait several months for the hearing.

· Written notice of claimed violations must be provided to the probationer or parolee before the expiration of probation, as well as the date and time of final hearing. See Stelljes v. State, 72 S.W.3d 196, 200–01 (Mo. App. W.D. 2002), for an important discussion of what constitutes notice: some “manifestation of an intent to conduct a revocation hearing” before the expiration of the probationary term.

· Before the...