We have an old judgment from a jury trial where defendant was convicted of sexual assault of a child and given ten years probation. He has a very simple special condition of probation that requires him to "attend" sex offender counseling.
Defendant is in year 8 of probation. He has attended some counselling off and on but has always been kicked out for failing to progress. In the last year two different counselors have kicked him out for failing to progress.
We are essentially in the situation now where there are no sex offender counselors that will accept the defendant.
We are planning to file a motion to revoke Defendant's probation because he is now unable to attend, and NOT attending sex offender counseling.
Of course the new judgments on sex offenders have a special condition saying that the Defendant must "successfully complete" the counselling.
Anyone see any problem with filing the MTR under these circumstances?
Wow! I had to check the name to make sure I hadn't posted this! Got the same kind of situation -- we filed MTR but had other violations as well. Haven't gotten him revoked yet as the Judge keeps giving him another chance to get into compliance.
I have no authority to quote but I have been up against similar situations on two occasions in a prior county. The judge was of the opinion he could not revoke just because the guy kept getting kicked out (he refused to admit his guilt in the counseling session) so the judge kept modifying the conditions of probation such as adding community service, stricter curfew, etc. With that approach you will either get the guy to participate or he will violate other conditions which will support a revocation.
I haven't faced that situation myself, I wonder why you can't just file an MTR and at the hearing ask the judge to amend his conditions of probation to require that the defendant successfully complete sex offender counseling.
If he gets kicked out again you can revoke to all the prison time that is appropriate with few procedural concerns.
Why won't that work?
Good advice, and fyi, I think all conditions of probation should be worded that way. Attend and complete (whatever school, counseling, etc is mandated).
ANother area where this can raise it's ugly head is in stay away conditions. Not just "avoid contact with" but "avoid all contact and attempted contact with", which covers pretty much everything. I had one judge who got hung up on this wording and demanded that "attempt to contact" be included in our wording.
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