AGO 1956 No. 292 - Jul 6 1956
CONVICTS ‑- GRANTING AND REVOCATION OF PROBATION ‑- CONVICT LEAVING JURISDICTION DURING PROBATION
In order to assure a subsequent hearing when an absconding probation violator is apprehended, the board of prison terms and paroles should file a petition or affidavit with the sentencing court, within the probation period, setting forth the facts constituting parole violation.
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July 6, 1956
Honorable Norman S. Hayner
Board of Prison Terms and Paroles
612 Smith Tower
Seattle 4, Washington Cite as: AGO 55-57 No. 292
You have requested the opinion of this office on certain questions which we paraphrase as follows:
(1) Where a person convicted of a crime is given a suspended sentence and probation by the superior court and subsequently cannot be found in the State of Washington and is believed to have left the jurisdiction contrary to the terms of his probation, is it necessary to request a bench warrant from the sentencing judge, as has been your practice, in order to effect a stopping of time and consequently extend the responsibility of your department indefinitely with respect to the probation?
(2) If a bench warrant need not be obtained from the sentencing judge, how long does the jurisdiction of the board extend over absconders who were placed on probation for a definite term?
We answer your first question in the affirmative.
In view of this we feel that it is unnecessary to answer your second question.
[[Orig. Op. Page 2]]
A probationer is not entitled to discharge at the expiration of the term of his sentence where there is pending a complaint by the probation officer that the probationer has violated the rules prescribed for his conduct while under probation. 24 C.J.S. 196, Criminal Law, § 1618 (12). The case of Roberts v. Lowry, 160 Ga. 494, 128 S.E. 746, decided under probation statutes very similar to our own, held that a probationer charged with violating the terms of her probation could be arrested and detained for a hearing and determination of the complaint of the probation officer against her after the time of her legal sentence had expired. The authorities cited at 29 A.L.R. (2d) 1074, 1132-33, indicate that in states, such as the State of Washington, where a hearing is required before probation can be revoked, a bench warrant or an order to show cause obtained by the parole board from the sentencing court is necessary to give the probationer notice and opportunity to be present at a hearing for revocation of probation.
On the basis of these authorities, we are of the opinion that the state board of prison terms and paroles should petition the sentencing court during the probationary period for an order revoking probation and obtain a bench warrant or order to show cause ordering the probationer to appear before the court. A hearing then may be had and probation revoked at such time as the probationer can be brought before the court, even though he cannot be so arraigned until after the expiration of his probation time or the maximum term for which he could have been sentenced for the particular crime.
We conclude that where a person convicted of a crime is given a suspended sentence and probation by the superior court and subsequently cannot be found in the State of Washington and is believed to have left the jurisdiction contrary to the terms of his probation, the following course of action should be taken.
The board of prison terms and paroles should file a petition or affidavit with the sentencing court within the probation period alleging the conviction and probation imposed, and the violation of the conditions of the probation, and praying that the court enter an order or issue a bench warrant requiring the absconding probationer to be brought before the [[Orig. Op. Page 3]] court to show cause why his parole should not be revoked. If this procedure is followed the court may hold a hearing and revoke probation after the expiration of the probationary period or the maximum term of sentence the probationer could have received.
Very truly yours,
DUANE S. RADLIFF
Assistant Attorney General