Probation Violation Time Vacated If Arresting Charge was Dismissed?

Rhode Island Defense Attorney Defending Probationers throughout Massachusetts and Rhode Island

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Before the summer of 2010, if you were found to be in violation of your probation after an evidentiary hearing, ordered to serve time on that violation, and then subsequently cleared of any wrongdoing on the offense that triggered the probation violation, you would still have to serve time for the probation violation.  In the summer of 2010, all of that changed.  Now, Rhode Island General Laws 12-19-18(b) provides in pertinent part that:

“(b) Whenever any person, after an evidentiary hearing, has been sentenced to imprisonment for violation of a suspended sentence or probationary period by reason of the alleged commission of a felony or misdemeanor said sentence of imprisonment shall, on a motion made to the court on behalf of the person so sentenced, be quashed, and imprisonment shall be terminated when any of the following occur on the charge which was specifically alleged to have constituted the violation:

(1) After trial person is found “not guilty” or a motion for judgment of acquittal or to dismiss is made and granted pursuant to Superior or District Court Rule of Criminal Procedure 29;

(2) After hearing evidence, a “no true bill” is returned by the grand jury;

(3) After consideration by an assistant or special assistant designated by the attorney general, a “no information” based upon a lack of probable cause is returned;

(4) A motion to dismiss is made and granted pursuant to the Rhode Island general laws § 12-12-1.7 and/or Superior Court Rule of Criminal Procedure 9.1; or

(5) The charge fails to proceed in District or Superior Court under circumstances where the state is indicating a lack of probable cause, or circumstances where the state or its agents believe there is doubt about the culpability of the accused.”

What this means is that, probationers who have their probation violated at a hearing and are sentenced to serve time, can have that time vacated by the court if the charge that triggered the presentment as a violator is subsequently dismissed by one of the five means above.

There is, however, a recent trend being observed by the Rhode Island Attorney General’s Office in an attempt to circumvent this statute: After a probationer has been found in violation of their probation after an evidentiary hearing, the State is then dismissing the triggering offense by way of Rule 48A, of the Rules of Criminal Procedure.  This is important for two specific reasons:

  1. Rule 48A dismissals are not contemplated by RIGL 12-19-18.
  2. As a result, this strategy makes it more difficult for a probationer to take advantage of the statute to get his/her probation time vacated.

Do You Have  A Loved-One Who Has Been Accused Of A Probation Violation?

Probation violations are often very complicated and involve severe consequences. If you have  a loved-one who has been accused of a probation violation, please contact our office immediately! Rhode Island Criminal Defense Lawyer Noah Kilroy is standing by to assist your family in fighting for the freedom of your loved-one.  Call or text us today at 401-855-9023.