§706-627 Tolling of probation. (1) Upon the filing of a motion to revoke a probation or a motion to enlarge the conditions imposed thereby, the period of probation shall be tolled pending the hearing upon the motion and the decision of the court. The period of tolling shall be computed from the filing date of the motion through and including the filing date of the written decision of the court concerning the motion for purposes of computation of the remaining period of probation, if any. In the event the court fails to file a written decision upon the motion, the period shall be computed by reference to the date the court makes a decision upon the motion in open court. During the period of tolling of the probation, the defendant shall remain subject to all terms and conditions of the probation except as otherwise provided by this chapter.

(2) In the event the court, following hearing, refuses to revoke the probation or grant the requested enlargement of conditions thereof because the defendant's failure to comply therewith was excusable, the defendant may be granted the period of tolling of the probation for purposes of computation of the remaining probation, if any. [L 1972, c 9, pt of §1; am L 1977, c 106, §1; am L 1980, c 156, §1; am L 1985, c 192, §2; am L 1986, c 314, §29]

COMMENTARY ON §706-627

This section affords the defendant threatened with loss or change of suspension or probation status the same procedural protection afforded a defendant at the time of original disposition.[1] Determinations to revoke suspension or probation, or to change the conditions thereof, are sometimes made with a degree of informality that does not afford to the defendant adequate opportunity to obtain counsel and to be heard upon the evidence.

This is an area where dangers of abuse are real and the normal procedural protection proper. That a defendant has no right to suspension or probation does not justify the alteration of his status by methods that must seem and sometimes be unfair.2

Although written notice, the right to be represented by counsel, and the right to controvert and be heard upon the evidence, are provided by this section, it is not contemplated that the court must strictly enforce the rules of evidence. In this type of hearing, where the relevant issues are decided by a court without the presence of a jury, the court should be granted some flexibility in this area.

Act 106, Session Laws 1977, added subsections (2) and (3) to provide for tolling the period of probation or suspension of sentence pending the hearing to revoke the probation or suspension or to increase the conditions thereof. Formerly, with no tolling provisions, it was possible for the period of probation or suspended sentence to run out before termination of the hearing, relieving defendant of any further obligation even though the defendant may have committed acts justifying change in the defendant's probation or suspension status. The amended section is intended to prevent such situations from occurring. Senate Standing Committee Report No. 1105, House Standing Committee Report No. 450.

Act 156, Session Laws 1980, made the granting of the period of tolling discretionary rather than mandatory. The legislature felt that the prior law gave the defendants an unfair advantage by allowing them "credit" on their sentence even while they were not abiding by its terms. Senate Standing Committee Report No. 753-80, House Standing Committee Report No. 434-80.

Case Notes

The tolling provisions under this section apply to deferral periods pursuant to a deferred acceptance of guilty plea under §853-1. 92 H. 322, 991 P.2d 832 (2000).

Where State did not file a written motion to revoke defendant's deferred acceptance of guilty plea, the probationary period was not tolled; thus, as the deferment period had expired two months earlier, trial court lacked jurisdiction to revoke defendant's deferred acceptance of guilty plea. 118 H. 15, 185 P.3d 200 (2008).

Filing motion under subsection (2) is not the only method of tolling period of probation; motion under §706-626(3) also tolls period. 1 H. App. 469, 620 P.2d 1082 (1980).

Mentioned: 55 H. 632, 525 P.2d 1119 (1974).

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§706-627 Commentary:

1. Cf. §706-604.

2. M.P.C., Tentative Draft No. 2, comments at 152 (1954).