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Rule 39 – Revocation or modification of probation

May 14, 2021 | Criminal Procedure, Wyoming

(a) Revocation. –

Proceedings for revocation of probation shall be initiated by a petition for revocation filed by the attorney for the state, setting forth the conditions of probation which are alleged to have been violated by the probationer and the facts establishing the violation.

(1) Process. – If it appears from a verified petition to revoke probation, or from an affidavit or affidavits filed with the petition, that there is probable cause to believe the probationer violated the terms of probation, the court shall order the probationer to appear before the court on a date and time stated to answer to the allegations in the petition. Upon the written request of the attorney for the state demonstrating good cause therefor, the court may issue a warrant for the probationer. A copy of the petition for revocation shall be served upon the probationer along with the order to appear or warrant.
(2) Appearance. – A probationer arrested on a warrant and taken into custody shall be taken before a judicial officer without unnecessary delay.
(3) Advice to Probationer. – At the probationer’s first appearance before the court, the court shall advise the probationer of the allegations of the petition for revocation and of the contents of any affidavits and shall further advise the probationer:

(A) Of the probationer’s right to retain counsel and, where applicable, the right to appointed counsel;
(B) Of the right to a hearing before a judge without a jury;
(C) Of the state’s burden of proof;
(D) Of the state’s burden of proof;
(E) Of the probationer’s right to confront adverse witnesses, to call other witnesses and have court process to obtain the testimony of reluctant witnesses and to present other evidence at the hearing; and
(F) If the probationer is in custody, of the general circumstances under which release may be secured pending a hearing.
(G) Of probationer’s right to appeal.
(4) Plea. – The probationer shall be given a copy of the petition for revocation of probation before being called upon to plead. The probationer shall be called upon to admit or deny the allegations of the petition for revocation. If the probationer admits the allegations of the petition, the court may proceed immediately to disposition, or may set a future date for disposition. If the petitioner denies the allegations of the petition, or declines to admit or deny, the court shall set the matter for hearing.

(A) If further proceedings are to follow the first appearance, the court may commit or release the probationer as provided in Rule 46.2.
(B) A hearing on the petition shall be held within the following time limits:

(i) If the probationer is in custody because of the probation revocation proceedings, a hearing upon a petition for revocation of probation shall be held within 15 days after the probationer’s first appearance before the court following the filing of the petition. If the probationer is not in custody because of the probation revocation proceedings, a hearing upon the petition shall be held within 30 days after the probationer’s first appearance following the filing of the petition. For good cause the time limits may be extended by the court.
(ii) Where it appears that the alleged violation of conditions of probation consists of an offense with which the probationer is charged in a criminal proceeding then pending, the court may continue the probation revocation proceedings until the termination of the criminal proceeding if the probationer consents, or regardless of consent, if the probationer is not in custody because of the probation revocation proceedings.
(5) Hearing. – At the hearing upon the petition for revocation of probation, the state must establish the violation of the conditions of probation alleged in the petition by a preponderance of the evidence.

(A) The probationer shall have the right to appear in person and by counsel, to confront and examine adverse witnesses, and at the dispositional stage to make a statement in mitigation of revocation.
(B) The Wyoming Rules of Evidence shall apply to the adjudicative phase of probation revocation hearings; however, hearsay that is probative, trustworthy and credible may be received into evidence. The Wyoming Rules of Evidence do not apply to the dispositional stage.
(6) Findings. – If the court finds a violation of conditions of probation and revokes probation, it shall enter an order reciting the violation and the disposition.

(A) Advisement of Right to Appeal. At the dispositional stage, the court shall advise the defendant of the right to appeal the probation revocation or the disposition. This advisement includes:

(i) The defendant’s right to appeal, including the time limits for filing a notice of appeal; and
(ii) The right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis and to have appointed counsel represent the defendant on appeal.
(B) Notice of Appeal. If the defendant so requests, the clerk of the court shall prepare and serve forthwith a notice of appeal in accordance with the Wyoming Rules of Appellate Procedure on behalf of the defendant.
(b) Modification. –

Proceedings for modification of conditions of probation may be initiated by a petition for modification filed by the attorney for the state, a probation agent or the probationer, setting forth the proposed modification and a statement of the reasons therefor. A copy of the petition shall be served upon the adverse party; if made by a probation officer it shall also be served upon the attorney for the state and, unless the attorney for the state consents, no action may be taken for five days without a hearing. Thereafter, the adverse party shall have 20 days to respond to the petition for modification of probation. If the adverse party consents to the requested modification or fails to respond to the petition, the court may act upon the requested modification with or without a hearing. If the adverse party responds by opposing the requested modification the court may hold a hearing. The Wyoming Rules of Evidence shall not apply at the modification hearing; all relevant, probative evidence may be received if the adverse party is given a fair opportunity to rebut the evidence. Within a reasonable time, the court shall grant or deny the requested modification in whole or in part.

Wyo. R. Prac. & P. 39

amended July 22, 1993, effective October 19, 1993; amended May 8, 2001, effective September 1, 2001; amended March 1, 2010, effective July 1, 2010; amended June 17, 2014, effective September 1, 2014.