Does anyone know where, if it exists, there is authority for the State to be entitled to a hearing before a judge signs off on an order for early termination of probation? We had a defendant file a motion, and without notice or a hearing the judge granted it on the motion's face. I would think we would be able to object to it on the merits, as well as present other evidence that, while some of defendant's activities may not merit an adjudication or revocation, they were worthy of keeping D on probation a while longer for monitoring. Oh, yeah, one more thing...it was an obstruction pled down from a DWI to begin with - part of the plea bargain was X number of months of deferred in order to get the reduced charge. The court MAY grant the motion, but the CCP is silent on the issue of a hearing (as far as we can tell).

[This message was edited by Gretchen on 07-31-06 at .]

I've never seen a statute stating that the Court must conduct a hearing. Most Courts I have served advise us as a courtesy once the ET motions are filed, if we agree the judge signs off on them and if we don't, a hearing is scheduled.

While there are some crimes for which the judge can't grant early termination of probation (DWI being one of them) and others for which ET is not available until D serves some percentage of the supervision, for most offenses the judge has broad discretion in granting ET. That discretion is the broadest for misdemeanor deferred adjudication.

I'm not aware of any case law or statute giving the State any right to notice or a hearing. While that would be the right way to handle such a motion, the issue is more of a political one because the State has no right to appeal an ET order.

A few years ago, some judges were granting ET in DWI cases. The DA filed an application for a writ of prohibition and got the Court of Appeals to declare the orders void, but only because the judge had no authority to grant them. That's about all I've seen.

Of course, one way to cut off such ET orders, or at least to gain a right to a hearing, is to include the agreement in the original plea bargain. For example: Defendant agrees that there is no early termination of supervision without notice and a hearing.

For more details, see Chapter 4, Community Supervision, in The Perfect Plea.

Thank you! We will be more cautious in including that language, especially in cases which have been pled down from something else.

Another way to discourage ex parte early terminations is to let your friends in the press know when the early terminatee screws up after being early terminated and before his originally bargained for probation would have been up. A judge who signs off on ex parte early terminations is really going out on a limb for a crook. He should be held accountable if the probationer messes up.

A pretty good argument also could be made that an ex parte decision is unethical. Judges are supposed to receive information through the normal adversarial process. That means both sides get notice and an opportunity to respond.