Defendant was extended on probation in 2006 for multiple violations. In 2007, probation department filed a violation report alleging a violation in 2005 that was not listed in the first application to revoke. Can the new probation, that occurred after this offense, be revoked for a previously committed offense? I'm thinking it shouldn't be, but the 2005 violation was a hefty federal offense, and the guy never would have been extended had we known. Any case law anyone can point me to?

Another important facet, the new violation and revocation were filed before the original probation had expired...so if not for the new extension, would have just been an additional ground for revocation.

[This message was edited by suzannejost on 12-15-09 at .]

Check out the opinion in 03-09-00104-CR
Shaw v. State. It seems to give a good analysis as to when a prior violation can or can not be used in a subsequent motion to revoke. I see no reason why the 2005 offense can not be used in the new motion since it was not made a part of the prior motion to revoke.

I think you can use it since it was not an allegation the first time around. The extension is not a new probation, just a modification of the first one.

Thanks very much.

so long as the violation was not adjudicated in the prior MTR, it can be used. i've got the case somewhere. However, you may have an issue with getting the Court to listen to you. I've seen judge hold very tightly to the idea that if it is an old violation, it's not usable.