October 05, 2016, 09:53
KelsDownMotion to Revoke
I have a Defendant that plead guilty to Felon in Possession and was given probation in our County. He then had sex with a 14 year old. He was charged/arrested for Sexual Assault of a Child, out of County. The Defendant recently pleaded guilty the the lesser included Injury to a Child and was given deferred. Can I list both as violations in the MTR? Thank you.
October 05, 2016, 10:52
ekquisenberryYou can allege any charge that you want and you will bear the burden to prove then by preponderance of the evidence. For the plea, that's just a matter of proving up a judgment. For the other, it's a bench trial with whatever evidence you have.
We have jurisdictions near us that make arrests and then drop the charges on our probationers. If we need to, we subpoena the officers and prove up the charge as a violation of our probation even though the case was refused/dismissed in the jurisdiction of arrest.
October 05, 2016, 11:31
KelsDownUnfortunately, our probation conditions read "commit or be convicted of" buy receiving deferred adjudication he wasn't "convicted" of the new offense.
October 05, 2016, 12:35
ekquisenberryThe plea paperwork for the deferred adjudication would still serve as a judicial admission of committing the crime, wouldn't it?
October 06, 2016, 08:34
JamesIf he pled guilty and received deferred adjudication you have a judicial admission.
If he pled no contest, then you have to prove it up by a preponderance.
October 06, 2016, 08:56
KelsDownPretty sure we have what we need now. I have the judgment, the judicial confession and the indictment, wherein the prosecutor modified it to reflect the lesser. Thank you all for your help.