29-2267. Probation; revocation; procedure.

(1) Whenever a motion or information to revoke probation is filed, the probationer shall be entitled to a prompt consideration of such charge by the sentencing court. The court shall not revoke probation or increase the probation requirements imposed on the probationer, except after a hearing upon proper notice where the violation of probation is established by clear and convincing evidence.

(2) The probationer shall have the right to receive, prior to the hearing, a copy of the information or written notice of the grounds on which the information is based. The probationer shall have the right to hear and controvert the evidence against him or her, to offer evidence in his or her defense, and to be represented by counsel.

(3) For a probationer convicted of a felony, revocation proceedings may only be instituted in response to a substance abuse or noncriminal violation if the probationer has served ninety days of cumulative custodial sanctions during the current probation term.

Source

Annotations

1. Burden of proof

2. Defendant's rights

3. Miscellaneous

1. Burden of proof

The minimal standard of proof under the Due Process Clause in the case of violations of probation is a preponderance of the evidence. State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011).

While the revocation of probation is a matter entrusted to the discretion of the trial court, unless the probationer admits to a violation of a condition of probation, the state must prove the violation by clear and convincing evidence. State v. Finnegan, 232 Neb. 75, 439 N.W.2d 496 (1989).

Violation of a single condition of probation established by clear and convincing evidence can support revocation. State v. Clark, 197 Neb. 42, 246 N.W.2d 657 (1976).

The violation of an order of probation must be established by clear and convincing evidence. State v. Parker, 191 Neb. 263, 214 N.W.2d 630 (1974).

2. Defendant's rights

In a probation revocation proceeding, where the unavailability of the witness was shown and the court found indicia of reliability and corroboration of the witness’ hearsay statements through other evidence, good cause had been shown and the court could rely on the hearsay statements in the absence of cross-examination of the witness. State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014).

If a defendant is incarcerated in another jurisdiction and the State wishes to charge the defendant with violating probation, it provides the defendant with reasonably "prompt consideration" of the charge if the State invokes the detainer process and notifies the defendant of the pending revocation proceedings. Absent unusual circumstances, the State is not required to extradite the defendant to revoke probation and sentence the defendant before the term of the defendant's foreign incarceration expires. State v. Hernandez, 273 Neb. 456, 730 N.W.2d 96 (2007).

The rights afforded a defendant in probation revocation proceedings do not include a right to remain silent. State v. Burow, 223 Neb. 867, 394 N.W.2d 665 (1986).

In a hearing hereunder, a defendant must be allowed to confront and cross-examine adverse witnesses unless the trial court specifically finds good cause for not allowing confrontation. State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975).

3. Miscellaneous

If a court is to revoke probation for a violation occurring within the probationary period, it is sufficient if procedure to that end was instituted within the probationary period or within a reasonable time thereafter. State v. Hernandez, 273 Neb. 456, 730 N.W.2d 96 (2007).

In evaluating the reasonableness of a delay in probation revocation proceedings, a court should consider such factors as the length of the delay, the reasons for the delay, and the prejudice to the defendant resulting from the delay. State v. Hernandez, 273 Neb. 456, 730 N.W.2d 96 (2007).

An order denying a defendant's motion to discharge under this section is not a final, appealable order. State v. Sklenar, 269 Neb. 98, 690 N.W.2d 631 (2005).

State's unexplained lack of diligence in serving warrant forfeits the State's right to revoke probation after the probationary term has ended. State v. Windels, 244 Neb. 30, 503 N.W.2d 834 (1993).

Where a probationer was tried, convicted, and sentenced in the county court, it is the county court, not the district court which served in its appellate capacity, that has jurisdiction to hear a motion to revoke probation. State v. Daniels, 224 Neb. 264, 397 N.W.2d 631 (1986).

A motion or information to revoke probation must be filed in the sentencing court followed by a prompt preliminary hearing before an independent officer. A judge, other than the sentencing judge, may conduct hearing on the merits and may base finding on unlawful conduct on evidence relating to another offense without regard to whether probationer has been convicted thereof. State v. Kartman, 192 Neb. 803, 224 N.W.2d 753 (1975).

An amendment to a probation order which was not made in conformance with this section is void. State v. Pawling, 9 Neb. App. 824, 621 N.W.2d 821 (2000).

Where errors in state probation revocation proceedings were not prejudicial to the probationer, he was not entitled to federal habeas corpus. Kartman v. Parratt, 397 F.Supp. 531 (D. Neb. 1975).