Chapter 1. Purposes, Construction, and General Definitions

§ 1. Purposes.

  1. The Department of Corrections created by 3 V.S.A. § 3081 shall have the purpose of developing and administering a correctional program designed to protect persons and property against offenders of the criminal law and to render treatment to offenders with the goal of achieving their successful return and participation as citizens of the State and community, to foster their human dignity and to preserve the human resources of the community.
  2. The Department shall formulate its programs and policies recognizing that almost all criminal offenders ultimately return to the community, and that the traditional institutional prisons fail to reform or rehabilitate, operating instead to increase the risk of continued criminal acts following release. The Department shall develop and implement a comprehensive program that will provide necessary closed custodial confinement of frequent, dangerous offenders, but that also will establish as its primary objective the disciplined preparation of offenders for their responsible roles in the open community. The Department shall ensure that the comprehensive program required by this subsection includes a process by which each offender sentenced to any term of imprisonment other than for life without parole, within 30 days after receiving his or her sentence, shall begin to develop and implement a plan preparing for return to the community.
  3. In order to implement its programs and policies the Department shall develop and maintain correctional facilities that shall include both residence-centered institutions and facilities reflecting nonresidence principles designed to facilitate the reintegration of the offender into the community.  These facilities shall utilize the supporting resources of probation and parole services, the increased cooperation of personnel in the fields of welfare, health, and education, and the increased participation of the citizens of the State in attempts to achieve correctional purposes and objectives.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 2005, No. 63 , § 17.

History

Amendments

—2005. Subsec. (b): Deleted “strive to” preceding “develop” in the second sentence, and added the third sentence.

ANNOTATIONS

Construction.

Statutes setting forth purposes of Department of Corrections and responsibilities of Commissioner did not compel conclusion that Vermont furlough statute required individual furlough assessments for each inmate prior to inmate’s minimum release date. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410, 1999 Vt. LEXIS 323 (1999).

Cited.

Cited in Battick v. Stoneman, 421 F. Supp. 213, 1976 U.S. Dist. LEXIS 16019 (D. Vt. 1976); State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990); Nash v. Coxon, 155 Vt. 336, 583 A.2d 96, 1990 Vt. LEXIS 200 (1990).

§ 2. Construction.

  1. The provisions of this title shall be liberally construed in order to effectuate the general purposes stated in section 1 of this title.
  2. The discretionary powers authorized by this title shall be exercised in accordance with the criteria stated in the title.  If these criteria are not dispositive in a particular instance, the general purposes established in section 1 of this title shall be controlling.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Cited.

Cited in Battick v. Stoneman, 421 F. Supp. 213, 1976 U.S. Dist. LEXIS 16019 (D. Vt. 1976).

§ 2a. Restorative justice.

  1. State policy.   It is the policy of this State that principles of restorative justice be included in shaping how the criminal justice system responds to persons charged with or convicted of criminal offenses, and how the State responds to persons who are in contempt of child support orders. The policy goal is a community response to a person’s wrongdoing at its earliest onset, and a type and intensity of sanction tailored to each instance of wrongdoing. Policy objectives are to:
    1. Resolve conflicts and disputes by means of a nonadversarial community process.
    2. Repair damage caused by criminal acts to communities in which they occur, and to address wrongs inflicted on individual victims.
    3. Reduce the risk of an offender committing a more serious crime in the future, that would require a more intensive and more costly sanction, such as incarceration.
  2. Implementation.   It is the intent of the General Assembly that law enforcement officials develop and employ restorative justice approaches whenever feasible and responsive to specific criminal acts, pursuant to 3 V.S.A. §§ 163 and 164, concerning court diversion; 13 V.S.A. chapter 221, concerning sentencing; and the provisions of this title, concerning persons in the custody of the Commissioner of Corrections. It is the further intent of the General Assembly that such restorative justice programs be designed to encourage participation by local community members, including victims, when they so choose, as well as public officials, in holding offenders accountable for damage caused to communities and victims, and in restoring offenders to the law-abiding community, through activities:
    1. That require offenders to:
      1. acknowledge wrongdoing and apologize to victims;
      2. make restitution for damage to the victims, consistent with provisions of 13 V.S.A. chapter 221 and of this title;
      3. make reparation for damage to the community by fulfilling a community service; and
      4. when relevant, successfully complete treatment addressing the offense or other underlying problematic behavior, or undertake academic or vocational training or other self-improving activity.
    2. That aid in the recovery of victims, recognizing that victims, particularly of violent crime, often suffer lifelong effects and, accordingly, must feel safe and involved in any program offered to assist them.
    3. That help in identifying the causes of crime and ways community members and municipal and State government can reduce or prevent crime in the future.

HISTORY: Added 1999, No. 148 (Adj. Sess.), § 62, eff. May 24, 2000; amended 2011, No. 119 (Adj. Sess.), § 8.

History

Amendments

—2011 (Adj. Sess.) Subsec. (a): Inserted “and how the state responds to persons who are in contempt of child support orders” following “persons charged with or convicted of criminal offenses”.

§ 3. General definitions.

As used in this title:

  1. “Child” means any person:
    1. charged with having committed a delinquent act as defined in 33 V.S.A. § 5102 or adjudicated a delinquent and committed to the custody of the Commissioner; or
    2. charged with being or adjudicated unmanageable as defined by 33 V.S.A. § 5102 (3)(C) and (D), and committed to the custody of the Commissioner for Children and Families and subsequently transferred to the custody of the Commissioner.
    3. [Repealed.]
  2. “Commissioner” means the Commissioner of Corrections.
  3. “Correctional facility” or “facility” means any building, enclosure, space, or structure of or supported by the Department and used for the confinement of persons committed to the custody of the Commissioner, or for any other matter related to such confinement.
  4. “Department” means the Department of Corrections.
  5. “Inmate” means any person, not a child, committed to the custody of the Commissioner pursuant to the law of the State and subsequently committed to a correctional facility and any person confined at a correctional facility during the pendency of a prosecution against him or her.
  6. “Law” includes the laws and ordinances of the State, its political subdivisions, and municipalities.
  7. “Law enforcement officer” means a State Police officer, a sheriff, a deputy sheriff, a municipal police officer, a constable, the Commissioner, or a member of the Department of Corrections when appointed in writing by the Commissioner and when his or her appointment is filed in the Office of the Secretary of State.  The Commissioner or such member shall have the same powers as a sheriff.
  8. “Offender” means any person convicted of a crime or offense under the laws of this State, and, for purposes of work crew, a person found in civil contempt under 15 V.S.A. § 603 .
  9. “Supervising officer” means the highest administrative officer in charge of any correctional facility.
  10. “Correctional officer” means any person who is an employee of the Department of Corrections whose official duties or job classification includes the supervision or monitoring of a person on parole, probation, or serving any sentence of incarceration whether inside or outside a correctional facility, and who has received training, as approved by the Commissioner of Corrections, as provided in section 551a of this title.
  11. “Restorative justice program” means a program developed and implemented by the Commissioner, consistent with State policy and legislative intent as provided by section 2a of this title.
  12. Despite other names this concept has been given in the past or may be given in the future, “segregation” means a form of separation from the general population that may or may not include placement in a single-occupancy cell and that is used for disciplinary, administrative, or other reasons, but shall not mean confinement to an infirmary or a residential treatment setting for purposes of evaluation, treatment, or provision of services.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1997, No. 152 (Adj. Sess.), § 1; 1999, No. 148 (Adj. Sess.), § 63, eff. May 24, 2000; 2011, No. 119 (Adj. Sess.), § 9; 2013, No. 131 (Adj. Sess.), § 130; 2017, No. 78 , § 3.

History

References in text.

Subdiv. (1)(B) refers to “unmanageable” children. Children formerly defined as unmanageable under former 33 V.S.A. § 632 are now defined as children in need of care or supervision under 33 V.S.A. § 5102 .

Revision note

—2013. In subdivs. (1)(A) and (B), substituted “ 33 V.S.A. § 5102 ” for “ 33 V.S.A. § 5502 ” to reflect repeal and recodification pursuant to 2007, No. 185 (Adj. Sess.), §§ 1 and 13.

Revision note—. Reference to “section 632” in subdivs. (1)(A) and (1)(B) changed to “section 5502” to conform to recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Subsec. designation at beginning of section deleted to conform section to V.S.A. style.

Amendments

—2017. Subdiv. (12): Added.

—2013 (Adj. Sess.). Subdiv. (1)(B): Substituted “by 33 V.S.A. § 5102 (3)(C) and (D)” for “in 33 V.S.A. § 5102 ” following “as defined”.

Subdiv. (1)(C): Repealed.

—2011 (Adj. Sess.). Subdiv. (8): Added “and, for purposes of work crew, a person found in civil contempt under 15 V.S.A. § 603 ”.

—1999 (Adj. Sess.). Subdiv. (11): Added.

—1997 (Adj. Sess.). Subdiv. (10): Added.

ANNOTATIONS

Correctional facility.

Plain language of the definition of “correctional facility” demonstrates that it encompasses out-of-state private prisons that house offenders under Department of Corrections custody. Nichols v. Hofmann, 2010 VT 36, 188 Vt. 1, 998 A.2d 1040, 2010 Vt. LEXIS 36 (2010).

§ 4. Standard measure of recidivism.

The Department shall calculate the rate of recidivism based upon offenders who are sentenced to more than one year of incarceration who, after release from incarceration, return to prison within three years for a conviction for a new offense or a violation of supervision resulting, and the new incarceration sentence or time served on the violation is at least 90 days.

HISTORY: Added 2013, No. 41 , § 1, eff. May 20, 2013.

Chapter 3. Administration of the Department

§ 101. Powers of the Department.

The Department is charged with the following powers:

  1. to establish, maintain, and administer such State correctional facilities and programs as may be required for the custody, control, correctional treatment, and rehabilitation of committed persons, and for the safekeeping of such other persons as may be committed to the Department in accordance with law;
  2. to operate diagnostic and treatment programs and such other programs deemed desirable to treat persons committed to the Department and to further other purposes and objectives of this title;
  3. to administer the supervision of persons placed on probation and released on parole and to administer probation and parole services;
  4. to employ such officers, employees and agents as deemed necessary to discharge the functions of the Department;
  5. to establish standards for the management, operation, personnel, and program of all correctional facilities in the State;
  6. to act in an advisory capacity in assisting law enforcement agencies, and communities in the prevention of crime and delinquency;
  7. to enforce and administer such other laws as may be vested in the Department;
  8. to enter into agreements for assistance in support of the operation of jails or lockups in accordance with criteria established by the Department, and to use the jails or lockups as provided in this title;
  9. notwithstanding any other provision of law, the State and the Department shall not be responsible for the expense of detaining a person in custody except as provided in this title;
  10. to charter, establish, and fund through grants such municipal entities or nonprofit organizations as may be required for providing crime prevention and restorative justice programs for offenders, victims of crime, and the public.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1981, No. 185 (Adj. Sess.), § 1, eff. April 22, 1982; 1997, No. 147 (Adj. Sess.), § 106b; 1999, No. 148 (Adj. Sess.), § 64, eff. May 24, 2000.

History

Amendments

—1999 (Adj. Sess.). Subdiv. (10): Substituted “restorative justice programs for” for “outreach services to” preceding “offenders”.

—1997 (Adj. Sess.). Subdiv. (10): Added.

—1981 (Adj. Sess.). Subdiv. (8): Added “and to use the jails or lockups as provided in this title” at the end of the subdiv.

Department of Corrections provisions relating to contraband. 2013, No. 163 (Adj. Sess.), § 2 provides: “(a) The Commissioner of Corrections shall adopt rules pursuant to 3 V.S.A. chapter 25 regarding procedures for conducting searches of the personal belongings of any person who enters the secure portion of a State correctional facility. The Commissioner shall consult with the Joint Legislative Corrections Oversight Committee in developing these rules and shall report periodically to the Committee regarding the implementation of these procedures and any issues of concern.

“(b) The Commissioner shall identify the types and amounts of contraband, and the methods used to transport contraband into each State correctional facility, including perimeter breaches, mail, and contacts with visitors. The Commissioner shall include this information in the Commissioner’s regular monthly reports to the Joint Legislative Corrections Oversight Committee from July 1, 2014 through December 1, 2014.

“(c) On or before December 1, 2015, the Commissioner shall make recommendations to the Joint Legislative Corrections Oversight Committee regarding strategies to prevent contraband from entering State correctional facilities.

“(d) The Commissioner may conduct preemployment drug screening in accordance with 21 V.S.A. § 512 of all permanent and temporary employees hired after July 1, 2014 and may conduct background investigations, including obtaining criminal history records in accordance with 20 V.S.A. § 2056a , prior to hiring any permanent or temporary employee.

“(e) On or before October 15, 2014, the Department of Corrections shall prepare and submit a report to the Joint Legislative Corrections Oversight Committee on security and safety concerns at State correctional facilities arising from public or private entities employing offenders through work programs.”

ANNOTATIONS

Cited.

Cited in Battick v. Stoneman, 421 F. Supp. 213, 1976 U.S. Dist. LEXIS 16019 (D. Vt. 1976); Town of Stowe v. County of Lamoille, 134 Vt. 402, 362 A.2d 159, 1976 Vt. LEXIS 689 (1976); State v. Powers, 173 Vt. 550, 789 A.2d 962, 2001 Vt. LEXIS 419 (2001).

§ 102. Commissioner of Corrections; appointment; powers; responsibilities.

  1. The Department is under the direction of the Commissioner, who shall be appointed by the Secretary of Human Services with the approval of the Governor and shall serve at the pleasure of the Secretary. The Commissioner’s salary shall be fixed by the Governor within the appropriation for that purpose.
  2. The Commissioner is charged with the following powers:
    1. To supervise the administration of the Department.
    2. To exercise supervisory power over and to establish and administer programs and policies for the operation of the correctional facilities of the Department, and for the correctional treatment of persons committed to the custody of the Commissioner.
    3. To appoint and remove a Deputy Commissioner as provided in 3 V.S.A. § 3053 and delegate appropriate powers and duties to the Deputy.
    4. To appoint and remove subordinate officers of the Department in accordance with law, and, notwithstanding the provisions of any other statute or law, to delegate any authority conferred on him or her by statute to any designee named by him or her in writing.
    5. To order the assignment and transfer of persons committed to the custody of the Commissioner to correctional facilities, including out-of-state facilities.
    6. To establish, consolidate, or abolish divisions within the Department, and to establish, consolidate, or abolish bureaus, special units, and other subdivisions in any division.
    7. To accept and receive, on behalf of the Department or any facility thereof, any bequest or gift of personal or real property made to the Department or any facility thereof, and to hold and use the property for the purposes specified in such bequest, devise, or gift.
    8. To cooperate with and accept funds from the federal government or any agency thereof for the purpose of exercising the powers and responsibilities stated in this section.
    9. To conduct any necessary inquiry or investigation into matters related to correctional programs and responsibilities of the Department.
    10. To utilize the resources of the Department to apprehend any person escaping from a correctional facility.  In performing such function, the Commissioner and any authorized employee of the Department shall have all the power and authority of a law enforcement officer.
    11. To contract for services or purchase, lease, or rent personal property to carry out the functions of the Department, and to lease or rent month to month residential housing for community-based probation and parole programs. All other real property required by corrections programs shall be purchased, leased, or rented by the Commissioner of Buildings and General Services.
    12. To enter into contracts with private collection agencies for the collection of supervisory fees imposed by this title and fines, penalties, and restitution imposed under Title 13. The Commissioner may agree to pay collection agencies a fixed rate for services rendered or a percentage of the amount collected that shall be added to any amounts and may be recovered as an administrative cost of collection. Any such fixed rate or percentage may be deducted directly by the collection agency on a pro rata basis from any portion of the money so collected.
    13. To establish community reparative boards pursuant to chapter 12 of this title.
    14. To delegate to locally established boards or justice centers, the authority to assist, through use of community resources, in developing and implementing restorative justice programs for offenders, victims of crime, and members of the community.
    15. To rely upon the expertise of Department employees to provide core and substantive supervision of offenders and risk assessment determinations for the delivery of correctional services in both residential and nonresidential settings.
    16. With the approval of the Secretary of Human Services, to accept federal grants made available through federal crime bill legislation, provided that the Commissioner shall report the receipt of a grant under this subdivision to the Chairs of the House Committee on Corrections and Institutions and the Senate Committee on Institutions.
  3. The Commissioner is charged with the following responsibilities:
    1. To make rules and regulations for the governing and treatment of persons committed to the custody of the Commissioner, the administration of correctional facilities, and the regulation of employees under the jurisdiction of the Commissioner.
    2. To establish and operate correctional diagnostic centers.
    3. To establish and maintain at each correctional facility a program of treatment designed as far as practicable to prepare and assist each inmate to assume his or her responsibilities and to participate as a citizen of the State and community.
    4. To establish facilities and develop programs to provide inmates at correctional facilities with such educational and vocational training deemed to be appropriate to the treatment of the inmates.
    5. To prescribe rules and regulations for the maintenance of discipline and control at each correctional facility.
    6. To maintain security, safety, and order at the correctional facilities and act to subdue any disorder, riot, or insurrection that may occur at any facility.  The Commissioner, for such purpose, may enlist the assistance of any citizen of the State, and shall have the obligation to render reasonable compensation to any person providing such assistance.
    7. To establish, maintain, and administer such regional or other community correctional facilities as are necessary for the confinement and treatment of inmates either before or after the conviction of any offense, and to use the jails and lockups as provided in this title.  Such facilities shall be used for the confinement of persons awaiting court disposition and the confinement of inmates serving short terms and such other inmates as may be assigned to such facilities for furloughs, work release, and other prerelease treatment.
    8. To establish in any appropriate correctional facility a system of classification of inmates, to establish a program for each inmate upon his or her commitment to the facility and to review the program of each inmate at regular intervals, and to effect necessary and desirable changes in the inmate’s program of treatment.
    9. To develop and maintain research programs and collect statistical information concerning persons committed to the custody of the Commissioner, sentencing practices, and correctional treatment.
    10. To inspect at regular intervals all correctional facilities.
    11. To close any correctional facility that he or she deems inadequate.
    12. To establish training programs for new employees, and to establish such in-service training programs as he or she deems advisable.
    13. [Repealed.]
    14. To collect a fee up to the amount of $30.00 per month as a supervisory fee from each person under the supervision of the Department who is on probation, furlough, pre-approved furlough, supervised community sentence, or parole. Supervisory fees collected by the Department shall be credited to a special supervision and victim restitution fund, established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5, for this purpose. The Commissioner shall adopt rules governing the collection of supervisory fees, including the maximum period of time offenders are subject to supervision fees and the offender’s ability to pay such fees.
    15. To lease farms or lands, with the approval of the Department of Buildings and General Services in accordance with 29 V.S.A. § 160 , and to administer and manage such farms.
    16. To exercise all powers and perform all duties established in the Office of Commissioner by the Agency of Human Services and stated in 3 V.S.A. §§ 3052 and 3053.
    17. To exercise all powers and perform all duties necessary and proper in carrying out his or her responsibilities and in fulfilling the purposes and objectives of this title.
    18. To establish within the Department programs for inmates to participate in work, industry, community service, public works activities, and employment at correctional facilities.
    19. If a treaty in effect between the United States and a foreign country provides for the transfer or exchange of a convicted and sentenced offender to the country of which the offender is a citizen or national, the Commissioner may, with the written consent of such offender obtained only after the opportunity to consult with counsel, and in accordance with the terms of the treaty, consent to the transfer or exchange of any such offender and take any other action necessary to initiate the participation of the State in the treaty.
    20. To utilize the Department of Buildings and General Services’ competitive bidding practices in order to determine the most effective and cost-effective alternatives for housing inmates in any out-of-state correctional facility.
    21. The Commissioner is authorized to contract for payment processing services for receiving deposits to inmate financial accounts. The Department, directly or through a processing agent, may assess a fee for deposits to each account so long as the fee does not exceed the costs incurred.
    22. To notify local and State law enforcement officers of the following information regarding a person released from incarceration on probation, parole, or furlough and residing in the community: name; address; conditions imposed by the court, parole board, or Commissioner; and the reason for placing the person in that community.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48 , § 1; 1977, No. 233 (Adj. Sess.), § 5a, eff. April 17, 1978; 1981, No. 185 (Adj. Sess.), § 2, eff. April 22, 1982; 1983, No. 147 (Adj. Sess.), § 4(a), eff. April 11, 1984; 1993, No. 54 , § 1; 1995, No. 178 (Adj. Sess.), § 116; 1995, No. 185 (Adj. Sess.), § 47, eff. May 22, 1996; 1995, No. 186 (Adj. Sess.), § 34; 1997, No. 155 (Adj. Sess.), §§ 15, 16; 1999, No. 148 (Adj. Sess.), § 65, eff. May 24, 2000; 2001, No. 65 , § 10, eff. June 16, 2001; 2001, No. 142 (Adj. Sess.), § 170; 2001, No. 149 (Adj. Sess.), § 43, eff. June 27, 2002; 2005, No. 177 (Adj. Sess.), § 3; 2007, No. 76 , § 33d; 2007, No. 179 (Adj. Sess.), § 2; 2009, No. 33 , § 48; 2009, No. 43 , § 34; 2009, No. 157 (Adj. Sess.), § 17a; 2011, No. 139 (Adj. Sess.), § 21, eff. May 14, 2012; 2017, No. 113 (Adj. Sess.), § 167.

History

Revision note—

At the end of subdiv. (b)(11), substituted “commissioner of buildings and general services” for “commissioner of state buildings” in light of 1995, No. 148 (Adj. Sess.), § 4.

In subdiv. (c)(15), substituted “department of buildings and general services” for “state buildings department” for purposes of conformity with 1995, No. 148 (Adj. Sess.), § 4(c)(1).

Amendments

—2017 (Adj. Sess.) Subsec. (a): Substituted “for that purpose” for “therefor” following “appropriation” in the second sentence.

—2011 (Adj. Sess.). Subdiv. (b)(16): Substituted “house committee on corrections and institutions and the senate committee on institutions” for “senate committee on institutions, the house committee on corrections and institutions, and the joint fiscal committee”.

—2009 (Adj. Sess.) Subdiv. (c)(22): Added.

—2009. Subdiv. (b)(16): Added by Act No. 43.

Subdiv. (c)(13): Deleted by Act No. 33.

—2007 (Adj. Sess.). Subdiv. (b)(5): Added “, including out-of-state facilities” at the end.

—2007. Subsec. (c): Added subdiv. (21).

—2005 (Adj. Sess.). Subdiv. (c)(19): Substituted “and a foreign country” for “and Canada”.

—2001 (Adj. Sess.). Subdiv. (c)(14): Amended generally.

Subdiv. (c)(20): Added.

—2001. Subdiv. (b)(12): Substituted “be added to” for “not to be deducted from” preceding “amounts” and “and” for “but” thereafter in the second sentence, and added the third sentence.

—1999 (Adj. Sess.). Subsec. (b): Added subdivs. (13)-(15).

—1997 (Adj. Sess.). Added subdiv. (b)(12) and in subdiv. (c)(14) substituted “adopt rules” for “make rules and regulations” and substituted “supervisory fees” for “overdue supervisory fees, fines and restitution” in the fourth sentence and deleted the last sentence, which was similar to subdiv. (b)(12).

—1995 (Adj. Sess.) Subdiv. (b)(11): Act. No. 185 deleted “real or” preceding “personal property” near the beginning of the first sentence, added “and to lease or rent month to month residential housing for community based probation and parole programs” at the end of the first sentence, and added the second sentence.

Subdiv. (c)(14): Added by Act Nos. 178 and 186.

Subdiv. (c)(19): Added by Act. No. 185.

—1993. Subdiv. (c)(18): Added.

—1983 (Adj. Sess.). Subdiv. (c)(15): Substituted “department” for “division” following “state buildings”.

—1981 (Adj. Sess.). Subdiv. (c)(7): Added “and to use the jails and lockups as provided in this title” following “offense” at the end of the first sentence.

—1977 (Adj. Sess.). Subdiv. (c)(14): Repealed.

—1973. Subdiv. (b)(10): Added “and any authorized employee of the department” following “commissioner” in the second sentence.

Repeal of expiration of subdiv. (c)(14). 1995, No. 186 (Adj. Sess.), § 37, as amended by 1997, No. 59 , § 20 and by 1997, No. 155 (Adj. Sess.), § 18(b), provided that subdiv. (c)(14), as added by 1995, No. 186 (Adj. Sess.) § 34, would expire on July 1, 1999. However, 1999, No. 49 , § 194, eff. June 2, 1999, amended that provision to delete the reference to the expiration of the subdivision.

CROSS REFERENCES

Duty to calculate sentences, see § 7044 of Title 13.

Notice of escape to victims of crime, see § 5305 of Title 13.

Procedure for adoption of administrative rules, see § 801 et seq. of Title 3.

ANNOTATIONS

Construction.

Statutes setting forth purposes of Department of Corrections and responsibilities of Commissioner did not compel conclusion that Vermont furlough statute required individual furlough assessments for each inmate prior to inmate’s minimum release date. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410, 1999 Vt. LEXIS 323 (1999).

Commissioner of Department of Corrections acted within authority conferred upon him by Legislature in promulgating policy which would make prisoners convicted of violent felonies ineligible for furlough until expiration of their minimum sentences. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410, 1999 Vt. LEXIS 323 (1999).

Inmate treatment programs.

Establishment of programming requirements falls within the Commissioner of Corrections’ explicit power to establish inmate treatment programs. The Department of Corrections is not an inferior court or tribunal of the Superior Court of Vermont, nor is it performing the functions of a quasi-judicial body when it establishes programming requirements; rather, the Commissioner is fulfilling his statutorily created responsibilities to establish classification and commitment programs for each inmate in a correctional facility and to periodically review such programming decisions. Rheaume v. Pallito, 2011 VT 72, 190 Vt. 245, 30 A.3d 1263, 2011 Vt. LEXIS 67 (2011).

While the decision to designate a sex offender as highly dangerous could be termed a quasi-judicial act—likely the reason why the Legislature explicitly provided for judicial review of designation decisions—the promulgation of programming requirements falls within the broad discretion of the Department of Corrections to determine what mode of treatment best serves individual inmates. Broad discretion must be granted to correctional authorities to determine what mode of treatment will best serve the individual inmate, and nothing in the statutes limits that discretion. Rheaume v. Pallito, 2011 VT 72, 190 Vt. 245, 30 A.3d 1263, 2011 Vt. LEXIS 67 (2011).

Private collection agencies.

The Legislature’s grant of power to contract with private collection agencies for the collection of court-ordered fines does not prevent a trial court from ordering a different means of collection when individual circumstances merit it in the probation context. State v. Powers, 173 Vt. 550, 789 A.2d 962, 2001 Vt. LEXIS 419 (2001).

The Legislature’s grant of power to contract with private collection agencies for the collection of court-ordered fines does not preclude the Department and the Commissioner from carrying out their responsibility “[t]o administer the supervision of persons placed on probation,” and “maintain general supervision of persons placed on probation... consistent with any orders of the court,” even when those court orders specify a means of payment of a fine that would prevent it from being contracted out to a collection agency. State v. Powers, 173 Vt. 550, 789 A.2d 962, 2001 Vt. LEXIS 419 (2001).

Transfer of inmates.

Authority to enter into contract to transfer Vermont inmates to an out-of-state facility was well within the powers reasonably and necessarily implied by the fundamental obligation of the Commissioner of the Department of Corrections to maintain prison safety and order, and the Commissioner’s express and unfettered statutory authority to designate, assign and transfer inmates. Daye v. State, 171 Vt. 475, 769 A.2d 630, 2000 Vt. LEXIS 388 (2000).

Cited.

Cited in Wetmore v. Smith, 130 Vt. 618, 298 A.2d 567, 1972 Vt. LEXIS 325 (1972); Rebideau v. Stoneman, 398 F. Supp. 805, 1975 U.S. Dist. LEXIS 11832 (D. Vt. 1975); Battick v. Stoneman, 421 F. Supp. 213, 1976 U.S. Dist. LEXIS 16019 (D. Vt. 1976); Town of Stowe v. County of Lamoille, 134 Vt. 402, 362 A.2d 159, 1976 Vt. LEXIS 689 (1976); State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990); Nash v. Coxon, 155 Vt. 336, 583 A.2d 96, 1990 Vt. LEXIS 200 (1990); LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695, 1993 Vt. LEXIS 96 (1993); State v. Lewis, 167 Vt. 533, 711 A.2d 669, 1998 Vt. LEXIS 165 (1998); Holcomb v. Lykens, 337 F.3d 217, 2003 U.S. App. LEXIS 14686 (2d Cir. 2003).

§ 103. Inquiries and investigations into the administration of the Department.

  1. The Commissioner at all times shall have unlimited access to all correctional facilities and to all records and books at the facilities, and may conduct inquiries and investigations concerning all matters under his or her jurisdiction.
  2. The Commissioner may seek the cooperation of any judge, prosecuting officer, sheriff, police officer, or other court or law enforcement official or employee possessing information relating to an inquiry or investigation conducted in accordance with subsection (a) of this section.
  3. In any inquiry or investigation conducted by the Commissioner, he or she shall have the same powers as are possessed by Superior Court judges in chambers, and which shall include the power to:
    1. administer oaths;
    2. compel the attendance of witnesses; and
    3. compel the production of documentary evidence.
  4. If any person disobeys any lawful order or subpoena issued by the Commissioner pursuant to this section or refuses to testify to any matter regarding which he or she may be questioned lawfully, any Superior Court judge, upon application by the Commissioner, shall order the obedience of the person in the same manner as if the person had disobeyed an order or subpoena of the Superior Court judge.
  5. The fees and traveling expenses of witnesses shall be the same as are allowed witnesses in the Superior Courts of the State and shall be reimbursed by the Commissioner out of any appropriation or funds at the disposal of the Department.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 185.

History

Amendments

—2009 (Adj. Sess.) Deleted “district court or” preceding “superior judges” in subsec. (c), preceding “superior judge” in subsec. (d), and preceding “superior courts” in subsec. (e).

—1973 (Adj. Sess.). Subsec. (e): Substituted “superior” for “county” preceding “courts”.

§ 104. Notification of community placements.

  1. The Department shall provide notice when appropriate and at the Department’s sole discretion to affected State, county, and local criminal justice entities and to local legislative bodies for the purposes of permitting public input and enhancing offender reintegration into the community whenever an offender is released under furlough after serving a sentence of incarceration in a correctional facility. The notice may include the offender’s name and any aliases, a recent photograph and physical description, community placement address, criminal history, current offense or offenses, and home address, plus a description and license number of any motor vehicle used by the offender, and the name, address, and telephone number of the correctional entity supervising the offender.
  2. The Department shall provide notice to affected State, county, and local criminal justice entities and to local legislative bodies for the purposes of permitting public input and enhancing offender reintegration into the community, at the point at which the Department has made arrangements to house in any apartment, duplex, or other kind of housing three or more offenders. If the housing concerned was not previously used to house offenders, such notice shall be given at least 15 days prior to placing any offender in such housing. If the housing concerned had previously housed one or two offenders only, such notice shall be given at least 15 days prior to placing a third offender in such housing.
  3. The Commissioner shall not implement this section until rules for doing so have been adopted. Such rules shall be adopted not later than September 1, 1999 through use of emergency rule-making procedures, if necessary.
  4. [Repealed.]
  5. The Commissioner of Corrections shall annually, by January 15, report to the House Committee on Corrections and Institutions and the Senate Committee on Institutions on the implementation of this section during the previous 12 months.

HISTORY: Added 1999, No. 29 , § 56, eff. May 19, 1999; amended 1999, No. 148 (Adj. Sess.), § 69, eff. May 24, 2000; 2011, No. 139 (Adj. Sess.), § 22, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Subsec. (e): Substituted “house committee on corrections and institutions and the senate committee on institutions” for “house and senate committees on institutions and on judiciary”.

—1999 (Adj. Sess.). Subsec. (d): Substituted “July 1, 2002” for “July 1, 2000”.

Subsec. (e): Added.

Expiration of subsec. (a); repeal of expiration. 1999, No. 29 , § 56, which enacted this section, provided in subsec. (d) of this section that subsec. (a) of this section shall expire on July 1, 2000. Then, 1999, No. 148 (Adj. Sess.), § 69, eff. May 24, 2000, amended subsec. (d) of this section to provide that subsec. (a) expire on July 1, 2002. However, 2001, No. 142 (Adj. Sess.), § 170b provided for the repeal of subsec. (d) so that subsec. (a) is no longer subject to expiration.

Report repeal delayed. 2015, No. 131 (Adj. Sess.), § 16 provides that the report set forth in 28 V.S.A. § 104(e) “shall not be subject to review under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2020”.

§ 105. Caseload capacity.

  1. Corrections officers designated to work exclusively with offenders in the community who are 21 years of age and younger shall have caseloads of not more than 25 youths.
  2. The Department shall review the severity of offenses and assess the risk to reoffend of all offenders older than 21 years of age under its jurisdiction in the community and assign one of the following levels of supervision to each offender:
    1. Risk management supervision, which shall mean supervision at a level of intensity that includes case planning and measures to reduce risk of reoffense.
    2. Response supervision, which shall mean monitoring of the offender’s compliance with conditions of probation or parole, including staff responding to violation behavior.
    3. Administrative supervision, which shall mean monitoring of the offender’s address and compliance with the law.
  3. An offender may be reassigned to a lower supervision level after a reassessment of the offender’s risk.
  4. The Department shall establish the following caseload ranges for offender profiles:
    1. All listed offenders requiring risk management shall be supervised at not more than 45 offenders per corrections officer.
    2. All nonlisted offenders requiring risk management shall be supervised at not more than 60 offenders per corrections officer.
    3. All offenders requiring response supervision shall be supervised at not more than 150 offenders per corrections officer.
    4. All offenders requiring administrative supervision may be supervised on caseloads consistent with the capacity of automated status reporting systems as established by the Department.
    5. When there is a mixed profile caseload in which a single corrections officer supervises offenders with different supervision levels and at least one-third of the offenders require a more intensive supervision demand than the other offenders, the caseload shall be supervised at the lowest level of offender-to-staff ratio.
  5. If the caseloads established in subsection (d) of this section are exceeded for longer than 120 days, the Commissioner shall be authorized to designate community correctional officers to partially augment staffing caseloads. If such designation does not remedy the excess caseloads:
    1. The Commissioner shall report to the Joint Legislative Justice Oversight Committee the causes for the excess and proposals for addressing them.
    2. The Department shall have the authority, if the Commissioner believes that the excess will not be eliminated within 60 days, to hire persons from the positions drawn from the State’s vacancy pool as limited service employees for an initial period of up to one year. The initial period may be extended for up to two more years if the Department deems it necessary.
  6. Each time a position is established under subdivision (e)(2) of this section, the Commissioner shall report it at the next meeting of the Joint Corrections Oversight Committee. The costs for each position shall be presented in the Department’s budget adjustment proposal and, if the positions are necessary for an ongoing period, in the Department’s annual budget request.

HISTORY: Added 2007, No. 179 (Adj. Sess.), § 6; amended 2019, No. 131 (Adj. Sess.), § 281.

History

Amendments

—2019 (Adj. Sess.). Subdiv. (e)(1): Substituted “Legislative Justice” for “Corrections”.

§ 106. Systems approach to community supervision of sex offenders.

  1. The Department of Corrections shall establish a comprehensive systems approach to the management of sex offenders, which employs longer and more intensive community supervision of high-risk sex offenders.  To accomplish this, the Department shall employ probation officers with training in the management of sex offenders sufficient to provide intensive community supervision and may use polygraph tests and prerelease and post incarceration treatment to promote rehabilitation.
  2. The Department shall create multidisciplinary case management teams, each involving as appropriate a probation or parole officer with training in supervision of sex offenders, a treatment provider, a victim’s advocate, a representative of the Department for Children and Families, and a forensic polygraph examiner.  These professionals shall collaborate, prioritizing community safety and the protection of former victims, and shall participate and cooperate in compliance with 13 V.S.A. § 5415 with the local special investigation unit.  These teams shall address the specific treatment and supervision needs of a particular offender to enhance protection of the public, to assist that offender in reintegrating safely into the community, to support and protect known victims, and to respond to any new concerns about risk of reoffense.
  3. The Department of Corrections shall designate and train probation and parole officers in each district office to supervise sex offenders, to provide consistent and intensive case management, and to impose and enforce conditions uniquely suited to aiding the offenders’ reintegration into the community.  These officers shall not have a caseload of more than 45 offenders, except that a mixed caseload shall be managed pursuant to subdivision 105(d)(5) of this title.

HISTORY: Added 2009, No. 1 , § 42.

§ 107. Offender and inmate records; confidentiality; exceptions; corrections.

    1. The Commissioner shall adopt a rule pursuant to 3 V.S.A. chapter 25 defining what are “offender and inmate records” produced or acquired by the Department. (a) (1) The Commissioner shall adopt a rule pursuant to 3 V.S.A. chapter 25 defining what are “offender and inmate records” produced or acquired by the Department.
    2. As used in this section, the phrase “offender and inmate records” means the records defined under the rule required under subdivision (1) of this subsection.
  1. Offender and inmate records are exempt from public inspection and copying under the Public Records Act and shall be kept confidential, except that the Department:
    1. Shall release or permit inspection of such records if required under federal or State law, including 42 U.S.C. §§ 10805 and 10806 (Protection and Advocacy Systems).
    2. Shall release or permit inspection of such records pursuant to a court order for good cause shown or, in the case of an offender or inmate seeking records relating to him or her in litigation, in accordance with discovery rules.
    3. Shall release or permit inspection of such records to a State or federal prosecutor as part of a criminal investigation pursuant to a court order issued ex parte if the court finds that the records may be relevant to the investigation. The information in the records may be used for any lawful purpose but shall not otherwise be made public.
    4. Shall release or permit inspection of such records to the Department for Children and Families for the purpose of child protection, unless otherwise prohibited by law.
    5. Shall release or permit inspection of specific categories or types of offender and inmate records to specific persons, or to any person, in accordance with a rule that the Commissioner shall adopt pursuant to 3 V.S.A. chapter 25, provided that the Commissioner shall redact any information that may compromise the safety of any person, or that is required by law to be redacted, prior to releasing or permitting inspection of such records under the rule. The rule shall provide for disclosure of a category or type of record in either of the following circumstances:
      1. when the public interest served by disclosure outweighs the privacy, security, or other interest in keeping the record confidential; or
      2. in order to provide an offender or inmate access to offender and inmate records relating to him or her, unless:
        1. the category or type of record is confidential or exempt from disclosure under a law other than this section;
        2. providing access would unreasonably interfere with the Department’s ability to perform its functions, including unreasonable interference due to the staff time or other cost associated with providing a category or type of record; or
        3. providing access may compromise the health, safety, security, or rehabilitation of the offender or inmate or of another person.
    1. Unless otherwise provided in this section or required by law, the rule required under subdivision (b)(5) of this section: (c) (1) Unless otherwise provided in this section or required by law, the rule required under subdivision (b)(5) of this section:
      1. shall specify the categories or types of records to be disclosed and to whom they are to be disclosed, and shall not provide for any exceptions to disclosure of records that fall within these categories or types except for redactions required by law;
      2. shall specify which categories or types of records relating to an offender or inmate shall be provided to the offender or inmate as a matter of course and which shall be provided only upon request;
      3. may limit the offender’s or inmate’s access to include only records produced or acquired in the year preceding the date of the request;
      4. may limit the number of requests by an offender or inmate that will be fulfilled per calendar year, provided that the Department fulfills at least two requests by the offender or inmate per calendar year excluding any release of records ordered by a court;
      5. may specify circumstances when an offender’s or inmate’s right of access will be limited to an inspection overseen by an agent or employee of the Department;
      6. may provide that the Department has no obligation to provide an offender or inmate a record previously provided if he or she still has access to the record; and
      7. shall reflect the Department’s obligation not to withhold a record in its entirety on the basis that it contains some confidential or exempt content, to redact such content, and to make the redacted record available.
    2. The Department shall provide records available to an offender or inmate under the rule free of charge, except that if the offender or inmate is responsible for the loss or destruction of a record previously provided, the Department may charge him or her for a replacement copy at $0.01 per page.
  2. Notwithstanding the provisions of 1 V.S.A. chapter 5, subchapter 3 (Public Records Act) that govern the time periods for a public agency to respond to a request for a public record and rights of appeal, the Commissioner shall adopt a rule pursuant to 3 V.S.A. chapter 25 governing response and appeal periods and appeal rights in connection with a request by an offender or inmate to access records relating to him or her maintained by the Department. The rule shall provide for a final exhaustion of administrative appeals not later than 45 days from the Department’s receipt of the initial request.
  3. An offender or inmate may request that the Department correct a fact in a record maintained by the Department that is material to his or her rights or status, except for a determination of fact that resulted from a hearing or other proceeding that afforded the offender or inmate notice and opportunity to be heard on the determination. The rule required under subsection (d) of this section shall reference that requests for such corrections are handled in accordance with the Department’s grievance process. If the Department issues a final decision denying a request under this subsection, the offender or inmate may appeal the decision to the Civil Division of the Superior Court pursuant to Rule 74 of the Vermont Rules of Civil Procedure. The court shall not set aside the Department’s decision unless it is clearly erroneous.

HISTORY: Added 2015, No. 137 (Adj. Sess.), § 5, eff. May 25, 2016; amended 2017, No. 192 (Adj. Sess.), § 1, eff. May 30, 2018.

History

Amendments

—2017 (Adj. Sess.). Section amended generally.

§§ 108-119. [Reserved for future use.]

§ 120. Department of Corrections education program; independent school.

  1. Authority.   An education program is established within the Department of Corrections for the education of persons who have not completed secondary education or are assessed to have a moderate-to-high criminogenic need by one or more corrections risk assessments and who are committed to the custody of the Commissioner.
  2. Applicability of education provisions.   The education program shall be approved by the State Board of Education as an independent school under 16 V.S.A. § 166 , and shall be coordinated with adult education, special education, and career technical education.
  3. Program supervision.   The Commissioner of Corrections shall appoint a licensed administrator under 16 V.S.A. chapter 51 to serve as the Headmaster of Correction Education and coordinate use of other education programs by persons under the supervision of the Commissioner.
  4. Curriculum.   The education program shall offer a minimum course of study, as defined in 16 V.S.A. § 906 , and special education programs in accordance with the program description used for independent school approval.
  5. [Repealed.]
  6. Reimbursement payments.   The provision of 16 V.S.A. § 4012 , relating to payment for State-placed students, shall not apply to the Corrections education program.
  7. [Repealed.]
  8. Required participation.   All persons under the custody of the Commissioner who are under 23 years of age and have not received a high school diploma, or are assessed to have a moderate-to-high criminogenic need and are within 24 months of reentry shall participate in an education program. The Commissioner may approve the participation of other students, including individuals who are enrolled in an alternative justice or diversion program.

HISTORY: Added 1987, No. 207 (Adj. Sess.), § 2; amended 1991, No. 204 (Adj. Sess.), § 11; 1997, No. 84 (Adj. Sess.), § 1; 2001, No. 149 (Adj. Sess.), §§ 38, 39, eff. June 27, 2002; 2007, No. 64 , § 4; 2007, No. 192 (Adj. Sess.), § 6.030; 2011, No. 63 , § E.337; 2011, No. 88 (Adj. Sess.), § 1, eff. April 25, 2012; 2013, No. 92 (Adj. Sess.), § 302, eff. Feb. 14, 2014; 2015, No. 23 , § 29; 2015, No. 58 , § E.337; 2015, No. 172 (Adj. Sess.), § E.337; 2019, No. 131 (Adj. Sess.), § 282.

History

Revision note

—2013 (Adj. Sess.). Subsec. (b): Substituted “career technical education” for “technical education”.

Amendments

—2019 (Adj. Sess.). Subsec. (h): In the first sentence, deleted “the age of” following “under” and inserted “years of age”.

—2015 (Adj. Sess.). Section amended generally.

—2015. Subsec. (b): Act No. 23 substituted “education quality standards” for “school quality standards” in the first sentence.

Subsec. (h): Act No. 58 added the second sentence.

—2011 (Adj. Sess.). Subsec. (c): Substituted “a director of corrections education” for “an education supervisor” and “serve as the superintendent of the Community High School” for “supervise the community high school”.

Subsec. (d): Inserted “and special education programs as required in 16 V.S.A. chapter 101” following “ 16 V.S.A. § 906 ”.

Subsec. (e): Repealed.

Subsec. (h): Substituted “an education program” for “the education program”.

—2011. Subsec. (g): Repealed.

—2007 (Adj. Sess.). Subsec. (c): Amended generally.

—2007. Subsec. (h): Substituted “23” for “22” following “age of”.

—2001 (Adj. Sess.) Subsec. (b): Substituted “state board” for “commissioner” and “ 16 V.S.A. § 165 ” for “section 165 of Title 16”.

Subsec. (h): Substituted “age of 22” for “age of 21”.

—1997 (Adj. Sess.). Added “independent school” to the section heading; substituted “committed to the custody of the commissioner of corrections” in subsec. (a) and “under the custody of the commissioner” in subsec. (e) for “incarcerated within an institution operated by the department”; in subsec. (b) inserted the phrase beginning “as an independent school” and ending with “Title 16”; deleted “offered within a correctional institution” from the end of subsec. (c); in subsec. (d), substituted “facility and department service center” for “institution”; in subsec. (e), added “Within the limits of funds made available for this specific purpose”; substituted the V.S.A. reference in subsec. (f) for a reference to 16 V.S.A. § 1075(d) ; and added subsec. (h).

—1991 (Adj. Sess.). Subsec. (b): Substituted “technical” for “vocational” following “special education and”.

CROSS REFERENCES

Reduction of term for participation in educational program, see § 811 of this title.

§ 121. Community High School of Vermont Board.

  1. A board is established for the purpose of advising the Director of Corrections Education when serving as the Superintendent of the Community High School of Vermont, the independent school established in section 120 of this title. The Board shall have supervision over policy formation for the Community High School of Vermont, except as otherwise provided, shall recommend school policy to the Director of Corrections Education, may create a structure for local advisory boards as it deems appropriate, and shall perform such other duties as requested from time to time by the Secretary of Education or Commissioner of Corrections.
  2. The Board shall consist of nine members, each appointed by the Governor for a three-year term subject to the advice and consent of the Senate, in such a manner that not more than three terms shall expire annually, as follows:
    1. Six representatives selected to ensure geographic representation throughout the State.
    2. Three members-at-large.
  3. The Board shall appoint a Chair and Vice Chair, each of whom shall serve for one year or until a successor is appointed by the Board.
  4. The Board shall report on its activities annually to the State Board of Education, the Secretary of Human Services, and the Commissioner of Corrections.
  5. The Commissioner shall consult with the Board prior to appointing the Director of Corrections Education.

HISTORY: Added 2001, No. 149 (Adj. Sess.), § 36, eff. June 27, 2002; amended 2011, No. 88 (Adj. Sess.), § 2, eff. April 25, 2012; 2013, No. 92 (Adj. Sess.), § 279, eff. Feb. 14, 2014.

History

Amendments

—2013 (Adj. Sess.). Subsec. (a): Substituted “Secretary of Education or Commissioner of Corrections” for “commissioner of education or of corrections”.

—2011 (Adj. Sess.) Amended generally.

Implementation. 2011, No. 88 (Adj. Sess.), § 3 provides: “Notwithstanding the provisions of Sec. 2, 28 V.S.A. § 121(b)(1) , the current members of the board shall serve until the expiration of their respective terms.”

§ 122. Contracting for programming and services.

For the purpose of securing programming and services for offenders, the Department of Corrections shall publicly advertise or invite three or more bids. The contract for any such programming and services shall be awarded to one of the three lowest responsible bidders, conforming to specification, with consideration being given to the time required for provision of services, the purpose for which it is required, competency and responsibility of bidder, and his or her ability to render satisfactory services; but the Commissioner with the approval of the Secretary of Human Services shall have the right to reject any and all bids and to invite other bids.

HISTORY: Added 2011, No. 41 , § 11a.

ANNOTATIONS

Generally.

Inmate’s claim for mandamus relief was based on sufficient standing, as he claimed that he was personally harmed by the Department of Corrections’ failure to engage in a competitive bidding process in order to provide telephone services to inmate as the lowest reasonable cost. Wool v. Menard, 2018 VT 23, 207 Vt. 25, 185 A.3d 577, 2018 Vt. LEXIS 25 (2018).

Inmate’s claim for mandamus relief was sufficiently stated, as he established the elements to show that he had a clear legal right to the relief sought of having the Department of Corrections seek a competitive contract for telephone services to inmates. Wool v. Menard, 2018 VT 23, 207 Vt. 25, 185 A.3d 577, 2018 Vt. LEXIS 25 (2018).

Inmate’s allegation that Vermont law required the Department of Corrections (DOC) to use competitive bidding to contract for telephone services and that DOC violated this requirement by using a sole-source contract provided DOC with sufficient notice of the basis of his claim for purposes of surviving a dismissal motion. Wool v. Menard, 2018 VT 23, 207 Vt. 25, 185 A.3d 577, 2018 Vt. LEXIS 25 (2018).

§ 123. Section 123 repealed effective July 1, 2025. Department of Corrections Monitoring Commission.

  1. Creation.   There is created the Corrections Monitoring Commission to provide advice and counsel to the Commissioner of Corrections with regard to the Commissioner’s responsibility to manage the reporting of sexual misconduct; promote adherence to anti-retaliation policies; ensure overall policy implementation and effectiveness; improve the transparency, accountability, and cultural impact of agency decisions; and ensure that the determination of investigatory findings and any resulting disciplinary actions are just and appropriate.
  2. Members.
    1. The Commission shall be composed of the following eight members:
      1. a former judge with knowledge of the criminal justice system, appointed by the Chief Justice of the Vermont Supreme Court;
      2. a retired attorney, appointed by the Department of State’s Attorneys and Sheriffs;
      3. a former corrections officer, appointed by the Vermont State Employees’ Association;
      4. two formerly incarcerated individuals who resided at different facilities, appointed by the Defender General;
      5. the Executive Director of the Vermont Network Against Domestic and Sexual Violence or designee;
      6. a former management-level employee of the Department of Corrections with experience in corrections management, appointed by the Governor; and
      7. an individual at large with knowledge of and experience in the correctional system, crime prevention, human resources, or compliance, appointed by the Governor.
    2. No member, at the time of appointment or during membership, shall be employed by the Department of Corrections or work in any part of the State correctional system. To the extent feasible, the appointing entities shall appoint members that will create a diverse Commission including gender, racial, and cultural diversity. Commission members shall demonstrate an understanding of and respect for the values, dignity, and diversity of individuals who are in the custody of the Commissioner of Corrections and those working within the State correctional system. If an appointing entity is unable to find a candidate for appointment to the Commission who meets the criteria of subdivision (1) of this subsection, the appointing entity may appoint an individual with relevant lived experience.
  3. Powers and duties.   The Commission shall have the following duties:
    1. Provide advice and counsel to the Commissioner of Corrections in carrying out the Commissioner’s responsibilities at the Department of Corrections to monitor reporting of sexual misconduct, oversee the implementation of the Department’s anti-retaliation policy, create transparency and implement policies relating to misconduct, and review disciplinary actions.
    2. Examine facility staffing needs, employee retention, employee working conditions, and employee morale. The Commission may engage with current and former Department employees and individuals in the custody of the Department, review the Analysis of State of Vermont Employee Engagement Survey Results from the Department of Human Resources, and meet with the Vermont State Employees’ Association to further the Commission’s understanding of these issues. The Commission shall report annually on or before January 15 to the Commissioner of Corrections, the Secretary of Human Services, the House Committees on Corrections and Institutions and Government Operations, and the Senate Committees on Judiciary and Government Operations on:
      1. the Department’s progress in improving staffing retention, working conditions, and employee morale over the year;
      2. the largest barriers to further improvement in staffing retention, working conditions, and employee morale; and
      3. any recommendations for improving employee retention, working conditions, and employee morale, including identifying any efforts undertaken in other states that could be implemented at the Department.
    3. Monitor the Department in the following areas:
      1. the timely reporting of allegations of sexual misconduct;
      2. compliance with the Prison Rape Elimination Act;
      3. the Department’s implementation of and adherence to policies relating to employee misconduct and discipline;
      4. employees’ adherence to Department policies, procedures, and directives, particularly to code of ethics and anti-retaliation policies;
      5. maintenance of an independent reporting hotline to the State Police at the women’s facility;
      6. investigations of employee misconduct, the movement of contraband in facilities, threats to personal safety, and the Department’s response to major events that occur in the Department of Corrections, including the death of an individual in the custody of the Commissioner of Corrections and the escape of an individual from a Department facility or Department custody; and
      7. facility staffing needs, employee retention, and employees’ working conditions and morale.
    4. Subdivision (c)(4) repealed effective July 1, 2024.

      Beginning on January 1, 2023, submit an annual report to the Commissioner of Corrections, the Secretary of Human Services, the House Committees on Corrections and Institutions and Government Operations, and the Senate Committees on Judiciary and Government Operations on metrics that assess the Department’s performance in the areas identified in subdivision (c)(3) of this section, including listing the number of complaints of retaliation and complaints of sexual misconduct and the outcomes of those complaints; identifying areas of repeated noncompliance with policies, procedures, and directives; and providing recommendations for improving compliance and eliminating instances of sexual misconduct in the Department of Corrections.

  4. Member terms.   The members of the Commission shall serve staggered three-year terms. A vacancy created before the expiration of a term shall be filled in the same manner as the original appointment for the unexpired portion of the term. A member appointed to fill a vacancy before the expiration of a term shall not be deemed to have served a term for the purpose of this subsection. Members of the Commission shall be eligible for reappointment. Members of the Commission shall serve not more than two consecutive terms. A member may be removed by a majority vote of the members of the Commission.
  5. Meetings.
    1. The Commission shall annually select a chair from among its members at the first meeting.
    2. A majority of the membership shall constitute a quorum.
  6. Assistance.   The Commission shall have the administrative, technical, and legal assistance of the Department of Corrections.
  7. Commissioner of Correction’s duties.   The creation and existence of the Commission shall not relieve the Commissioner of his or her duties under the law to manage, supervise, and control the Department of Corrections.
  8. Reimbursement.   Members of the Commission shall be entitled to receive per diem compensation and reimbursement for expenses in accordance with 32 V.S.A. § 1010 .

HISTORY: Added 2021, No. 56 , § 2; amended 2021, No. 56 , § 3(a), eff. July, 1, 2024; repealed on July 1, 2025 by 2021, No. 56, § 3(b).

History

Sunset of Corrections Monitoring Commission report; sunset of Commission. 2021, No. 56 , § 3 provides: “(a) 28 V.S.A. § 123(c)(4) (Commission report) is repealed on July 1, 2024.

“(b) 28 V.S.A. § 123 (Department of Corrections Monitoring Commission) is repealed on July 1, 2025.”

Implementation of the Corrections Monitoring Commission. 2021, No. 56 , § 4 provides: “(a) The Corrections Monitoring Commission, created in Sec. 2 of this act, is established on January 1, 2022.

“(b) Members of the Commission shall be appointed on or before December 1, 2021. Terms of members shall officially begin on January 1, 2022.

“(c)(1) In order to stagger the terms of the members of the Corrections Monitoring Commission as described in 28 V.S.A. § 123 in Sec. 2 of this act, the initial terms of those members shall be as follows:

“(A) the Chief Justice of the Vermont Supreme Court shall appoint a member for a three-year term;

“(B) the Department of State’s Attorneys and Sheriffs shall appoint a member for a two-year term;

“(C) the Vermont State Employees’ Association shall appoint a member for a three-year term;

“(D) the Defender General shall appoint two members, one for a one-year term and one for a three-year term;

“(E) the Executive Director of the Vermont Network Against Domestic and Sexual Violence or designee shall serve a two-year term;

“(F) the Governor shall appoint a member to fill the position designated in subdivision (b)(1)(F) of Sec. 2 of this act for a two-year term; and

“(G) the Governor shall appoint a member to fill the position designated in subdivision (b)(1)(G) of Sec. 2 of this act for a one-year term.

“(2) After the expiration of the initial terms set forth in subdivision (1) of this subsection, Commission member terms shall be as set forth in 28 V.S.A. § 123 in Sec. 2 of this act.”

§ 124. Department of Corrections; Corrections Investigative Unit.

  1. Creation.   There is created the Corrections Investigative Unit (CIU) within the Department. The CIU shall investigate the following topics to comply with federal law and to identify systemic issues within the Department:
    1. allegations of violations of the Prison Rape Elimination Act;
    2. major events that occur in the Department, including the death of an individual in the custody of the Department or the escape of an individual from a facility or the custody of Department staff;
    3. Department compliance with policies, procedures, and directives;
    4. the movement of contraband in facilities; and
    5. threats against the personal safety of Department employees and individuals in the custody of the Department.
  2. Staff.   The Commissioner of Corrections shall appoint and employ sufficient staff and adopt the necessary procedures for the CIU to carry out the duties required under this section.
  3. Coordination.   The CIU shall coordinate with outside investigative agencies and law enforcement agencies concerning criminal allegations and shall coordinate with a designated point of contact at the Department of Human Resources on employee misconduct investigations and disciplinary actions. The CIU shall conduct personal safety planning as necessary for employees who receive threats.
  4. Employee rights.
    1. An employee who is subject to questioning or investigation by the CIU shall be entitled to all procedural and substantive rights afforded to the employee by State and federal law and any applicable collective bargaining agreement or employment contract, including any contractual rights that apply to proceedings or investigations that may result in an adverse employment action.
    2. Information gathered by the CIU in the course of an investigation shall be subject to discovery pursuant to the applicable rules of the Vermont Labor Relations Board or a court of competent jurisdiction, as appropriate.
  5. Collective bargaining.   Nothing in this section shall be construed to limit the right of the State and the employee organization to collectively bargain with respect to matters related to investigations and employee discipline that are not otherwise controlled by statute.

HISTORY: Added 2021, No. 56 , § 5.

Chapter 5. Probation

CROSS REFERENCES

Applicability of Rules of Evidence, see Rule 1101, Vermont Rules of Evidence.

Supervised community sentences, see § 351 et seq. of this title.

ANNOTATIONS

Deferred sentence.

This chapter, normally used for post-sentence probation, applies equally to probation imposed as part of deferred sentence. State v. Murray, 159 Vt. 198, 617 A.2d 135, 1992 Vt. LEXIS 137 (1992).

Duration of probation.

General reference to further order of court in defendant’s deferred-sentence agreement did not authorize court to extend duration of her probation despite very specific durational limit in the agreement and in court’s order. State v. Murray, 159 Vt. 198, 617 A.2d 135, 1992 Vt. LEXIS 137 (1992).

Terms and conditions.

Probationer should be clearly informed of terms and conditions of her probation. State v. Murray, 159 Vt. 198, 617 A.2d 135, 1992 Vt. LEXIS 137 (1992).

Subchapter 1. General Provisions

§ 200. Purpose of probation.

It is the policy of this State that the purpose of probation is to rehabilitate offenders, reduce the risk that they will commit a subsequent offense, and protect the safety of the victim and the community.

HISTORY: Added 2021, No. 24 , § 1.

§ 201. Definitions.

Whenever used in this chapter, unless a different meaning plainly is required, “probation” means a procedure under which a respondent, found guilty of a crime upon verdict or plea, is released by the court, without confinement, subject to conditions imposed by the court and subject to the supervision of the Commissioner.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Effect of violation.

There is an obvious connection between a suspended sentence imposed for an underlying crime and the reimposed sentence following a defendant’s violation of probation conditions. The reinstatement of an original sentence following a probation violation, however, does not transform a probation violation and an underlying criminal offense into the same act. State v. Bohannon, 2010 VT 22, 187 Vt. 410, 996 A.2d 196, 2010 Vt. LEXIS 22 (2010).

Restitution.

On its face, the restitution statute simply is not applicable to situations where no crime has occurred. It is universally acknowledged that a probation revocation proceeding is not essentially “criminal” in nature, and other courts have made a similar distinction between a probation violation and the underlying crime; it follows, therefore, that a probation violation is not a separate crime sufficient to independently trigger the restitution statute. State v. Bohannon, 2010 VT 22, 187 Vt. 410, 996 A.2d 196, 2010 Vt. LEXIS 22 (2010).

Expenses for which restitution was being sought were not the direct result of the crime for which defendant was convicted and sentenced; instead, the expenses associated with extradition were directly related to the separate probation violation of leaving the state of Vermont without permission or notice to defendant’s parole officer and taking up residence in the state of Washington. Thus, they could not be made the subject of a restitution order. State v. Bohannon, 2010 VT 22, 187 Vt. 410, 996 A.2d 196, 2010 Vt. LEXIS 22 (2010).

Cited.

Cited in Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895, 1979 Vt. LEXIS 910 (1979); State v. St. Francis, 160 Vt. 352, 628 A.2d 556, 1993 Vt. LEXIS 51 (1993); State v. Benjamin, 2007 VT 52, 182 Vt. 54, 929 A.2d 1276, 2007 Vt. LEXIS 150 (2007).

§ 202. Powers and responsibilities of the Commissioner regarding probation.

The Commissioner shall be charged with the following powers and responsibilities regarding the administration of probation:

  1. To maintain general supervision of persons placed on probation, and to prescribe rules, consistent with any orders of the court, governing the conduct of such persons.
  2. To supervise the administration of probation services and establish policies and standards and make rules regarding probation investigation, supervision, case work and case loads, record keeping, and the qualification of probation officers.
  3. To use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on probation. Transdermal alcohol monitoring equipment shall be used for such purposes as discouraging persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 2007, No. 179 (Adj. Sess.), § 3.

History

Revision note

—2008. In subdiv. (1), deleted “and regulations” to conform to V.S.A. style.

Amendments

—2007 (Adj. Sess.). Subdiv. (2): Deleted “and regulations” following “rules”, and made minor changes in punctuation.

Subdiv. (3): Added.

Prior law.

28 V.S.A. § 1201 .

CROSS REFERENCES

Procedure for adoption of administrative rules, see § 801 et seq. of Title 3.

ANNOTATIONS

Cited.

Cited in State v. Powers, 173 Vt. 550, 789 A.2d 962, 2001 Vt. LEXIS 419 (2001).

§ 203. Probation warrant.

  1. Whenever a probationer is placed in the custody of the Commissioner, the court shall furnish the Commissioner with a warrant setting forth the name of the probationer, the nature of the crime of which he or she was convicted, the date and place of trial and sentence, the sentence imposed, the order of the court committing him or her to the charge of the Commissioner, and the conditions of his or her release.
  2. The warrant shall be full authority for the exercise by the Commissioner of all the rights and powers over and in relation to the probationer prescribed by law and by the order of the court.
  3. The warrant shall be sufficient authority for the apprehension and detention of the probationer by the Commissioner or by any officer acting under his or her direction at any time or place.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law.

28 V.S.A. § 1212(a) .

ANNOTATIONS

Cited.

Cited in State v. Therrien, 140 Vt. 625, 442 A.2d 1299, 1982 Vt. LEXIS 470 (1982); State v. St. Francis, 160 Vt. 352, 628 A.2d 556, 1993 Vt. LEXIS 51 (1993); State v. Wargo, 168 Vt. 231, 719 A.2d 407, 1998 Vt. LEXIS 244 (1998).

§ 204. Submission of written report; protection of records.

  1. A court, before which a person is being prosecuted for any crime, may in its discretion order the Commissioner to submit a written report as to the circumstances of the alleged offense and the character and previous criminal history record of the person, with recommendation. If the presentence investigation report is being prepared in connection with a person’s conviction for a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3, the Commissioner shall obtain information pertaining to the person’s juvenile record, if any, in accordance with 33 V.S.A. §§ 5117 and 5119(f)(6), and any deferred sentences received for a registrable sex offense in accordance with 13 V.S.A. § 7041(h) , and include such information in the presentence investigation report.
  2. The court shall order such a report to be made before imposing sentence when the respondent is adjudged guilty of a felony, except as otherwise provided by rules of the Supreme Court. If the report has been made to any court within the State within a period of two years with reference to such individual, in connection with the same or another offense, submission of a copy of that report may fulfill the requirements of this section, if the court to which the report is to be submitted approves.  Upon request, the Commissioner shall furnish a State’s Attorney with a copy of any report made within the State once sentence has been passed in connection with the offense for which the report was made.
  3. The report ordered by the court under this section or section 204a of this title shall be made not less than one week nor more than three weeks from the date of the order. This three-week limit may be extended by order of the court.
    1. Except as provided in subdivision (2) of this subsection, any presentence investigation report or parole summary prepared by any employee of the Department in the discharge of the employee’s official duty, except as provided in subdivision 204a(b)(5) and section 205 of this title, is confidential and shall not be disclosed to anyone outside the Department other than the judge or the Parole Board. (d) (1) Except as provided in subdivision (2) of this subsection, any presentence investigation report or parole summary prepared by any employee of the Department in the discharge of the employee’s official duty, except as provided in subdivision 204a(b)(5) and section 205 of this title, is confidential and shall not be disclosed to anyone outside the Department other than the judge or the Parole Board.
      1. The court or Board shall permit inspection of the presentence investigation report or parole summary, redacted of information that may compromise the safety or confidentiality of any person, by the State’s Attorney and by the defendant or inmate or his or her attorney; and (2) (A) The court or Board shall permit inspection of the presentence investigation report or parole summary, redacted of information that may compromise the safety or confidentiality of any person, by the State’s Attorney and by the defendant or inmate or his or her attorney; and
      2. the court or Board may, in its discretion, permit the inspection of the presentence investigation report or parole summary or parts thereof by other persons having a proper interest in the report or parole summary, whenever the best interests or welfare of the defendant or inmate makes that action desirable or helpful.
  4. The presentence investigation report ordered by the court under this section or section 204a of this title shall include the comments or written statement of the victim, or the victim’s guardian or next of kin if the victim is incompetent or deceased, whenever the victim or the victim’s guardian or next of kin choose to submit comments or a written statement.
  5. Except as otherwise provided by law, reports and records subject to this section may be inspected, pursuant to a court order issued ex parte, by a State or federal prosecutor as part of a criminal investigation if the court finds that the records may be relevant to the investigation. The information in the files may be used for any lawful purpose but shall not otherwise be made public.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 109 , § 10, eff. May 25, 1973; 1981, No. 223 (Adj. Sess.), § 18; 1989, No. 293 (Adj. Sess.), § 7; 1995, No. 170 (Adj. Sess.), § 18, eff. Sept. 1, 1996; 2005, No. 192 (Adj. Sess.), § 11, eff. May 26, 2006; 2009, No. 1 , § 35; 2009, No. 58 , § 19; 2013, No. 168 (Adj. Sess.), § 3, eff. June 3, 2014; 2015, No. 29 , § 21; 2015, No. 137 (Adj. Sess.), § 3, eff. May 25, 2016; 2017, No. 113 (Adj. Sess.), § 169.

History

Amendments

—2017 (Adj. Sess.) Subdiv. (d)(2)(B): Substituted “in the report or parole summary” for “therein” following “proper interest” and “interests” for “interest” preceding “or welfare of”.

—2015 (Adj. Sess.). Subsecs. (a), (e): Inserted “investigation” following “presentence” wherever it appears.

Subdivs. (d)(1), (d)(2): Amended generally.

—2015. Subsec. (d): Substituted “confidential” for “privileged” preceding “and shall not be disclosed” in the first sentence.

—2013 (Adj. Sess.). Subsec. (d): Added the second sentence.

—2009. Subsec. (a): Act No. 1 inserted “criminal history” preceding “record” and added the second sentence.

Subsec. (d): Act Nos. 1 and 58 inserted “subdivision 204a(b)(5) and” preceding “section 205”.

Subsec. (f): Added by Act No. 58.

—2005 (Adj. Sess.). Subsec. (c): Inserted “or section 204a of this title” following “section”.

Subsec. (e): Inserted “ordered by the court under this section or section 204a of this title” following “report”.

Subsec. (f): Deleted.

—1995 (Adj. Sess.) Subsec. (d): Inserted “except as provided in section 205 of this title” following “official duty” and made minor changes in phraseology.

—1989 (Adj. Sess.). Subsec. (f): Added.

—1981 (Adj. Sess.). Subsec. (e): Added.

—1973. Subsec. (b): Rewrote the first sentence.

Prior law.

28 V.S.A. §§ 1003 , 1208.

CROSS REFERENCES

Sentencing information, see Rule 32(c), Vermont Rules of Criminal Procedure.

Contents of report.

Effect of delay in filing report.

Inspection by defendant.

Public access.

Rights of victims.

Testimony by victims.

Time limit.

Contents of report.

In sentencing a defendant convicted of dispensing marijuana in a correctional facility, court could properly consider statements by corrections officials in the presentence investigation report as to the problem of drugs in correctional facilities and the possible deterrent effect of defendant’s sentence on that problem. State v. Francis, 152 Vt. 628, 568 A.2d 389, 1989 Vt. LEXIS 217 (1989).

Effect of delay in filing report.

A three-week delay in filing a presentence investigation report was not prejudicial to the defendant, so long as the report on the defendant was furnished to the court before it imposed sentence. State v. Rathburn, 140 Vt. 382, 442 A.2d 452, 1981 Vt. LEXIS 641 (1981).

Inspection by defendant.

A defendant seeking access to another individual’s presentence investigation report (PSI) must support the request with a plausible showing of materiality; upon such a showing, the court should review the PSI in camera and disclose only that information, if any, that is material to guilt or punishment. State v. Bacon, 167 Vt. 88, 702 A.2d 116, 1997 Vt. LEXIS 243 (1997).

Defendant did not make a plausible showing that information in other individual’s presentence investigation reports (PSIs) was material to his sentencing: He did not claim that the requested PSIs contained information concerning his culpability or aggravating and mitigating factors, but sought only to compare himself with other individuals who had been sentenced to life-without-parole. Even if it was assumed that the PSIs would have shown that these other individuals were more culpable and dangerous than defendant, that information would not have been material to his sentence, as sentencing in Vermont is individualized, with broad discretion afforded the trial court in fashioning an appropriate sentence, which may involve a wide-ranging inquiry into a defendant’s life and the nature of the offense committed. State v. Bacon, 167 Vt. 88, 702 A.2d 116, 1997 Vt. LEXIS 243 (1997).

Where defendant requested access to the presentence investigation report (PSI) of his accomplice, the court should have reviewed the accomplice’s PSI in camera and disclosed any information material to defendant’s sentence, such as motives or relative responsibility for the crime. State v. Bacon, 167 Vt. 88, 702 A.2d 116, 1997 Vt. LEXIS 243 (1997).

Policy of this section and V.R.Cr.P. 32 is that presentence investigation reports be available for inspection, in trial court’s discretion, when availability is in the best interests of defendant. In re Sevene, 136 Vt. 602, 396 A.2d 1390, 1979 Vt. LEXIS 917 (1979).

Failure to produce presentence investigation report at request of person who had pled guilty to statutory rape and been sentenced, and who, in petition for review of sentence, stated that he was functionally illiterate and that his presentence report was not read to him until weeks after sentence, was not sound exercise of court’s discretion to make report available, and dismissal of petition had to be vacated where court had not considered the report, yet found that petitioner failed to substantiate claim that inaccuracies in it were grounds for vacating plea and sentence. In re Sevene, 136 Vt. 602, 396 A.2d 1390, 1979 Vt. LEXIS 917 (1979).

Public access.

The qualified First Amendment right of access that attaches to documents submitted by parties in sentencing hearings does not extend to presentence investigation reports (PSI) prepared at the request of, and for the benefit of, the sentencing court, which are protected by 28 V.S.A. § 204(d) and have historically not been open to the press and public. This conclusion is not affected by the fact that some information contained in a PSI may become public during the sentencing process, as the documents themselves have been, and continue to be, treated as confidential. Much information contained in PSIs, including that provided by defendants themselves, remains private. State v. LaBounty, 167 Vt. 25, 702 A.2d 82, 1997 Vt. LEXIS 183 (1997).

Rights of victims.

Subsection (e) of this section, granting an absolute right to a victim to submit comments or a written statement for inclusion in the presentence report, does not imply the prohibition of any other manner of victim participation in sentencing. In re Meunier, 145 Vt. 414, 491 A.2d 1019, 1985 Vt. LEXIS 312 (1985).

Testimony by victims.

Age-related impairment in a person’s ability to, for example, manage his or her own finances does not foreclose the possibility that the person may still be capable of expressing himself or herself regarding a matter upon which he or she is called to testify. Thus, a person may be found to be a “vulnerable adult” and the victim of a charge of exploiting a vulnerable adult, but still be competent to testify according to the Vermont Rules of Evidence and for the purposes of sentencing consideration. State v. Davis, 2018 VT 33, 207 Vt. 346, 186 A.3d 1088, 2018 Vt. LEXIS 33 (2018).

Time limit.

Probation officers should comply with subsection (c) of this section, governing the time for filing presentence investigation reports, and seek any extension they require by order of the court. State v. Rathburn, 140 Vt. 382, 442 A.2d 452, 1981 Vt. LEXIS 641 (1981).

Cited.

Cited in Doe v. Salmon, 135 Vt. 443, 378 A.2d 512, 1977 Vt. LEXIS 649 (1977); State v. Chambers, 144 Vt. 377, 477 A.2d 974, 1984 Vt. LEXIS 485 (1984); State v. Grenier, 158 Vt. 153, 605 A.2d 853, 1992 Vt. LEXIS 28 (1992).

Annotations From Former § 1208

Remand.

Remand of case from county court to municipal court so that written presentence investigation could be put into proceedings in place of oral report actually made, in order to comply literally with language of this section, was not unauthorized or illegal. State v. Morse, 126 Vt. 314, 229 A.2d 232, 1967 Vt. LEXIS 191 (1967).

Time limit.

Provision of this section governing time for filing presentence investigation report did not create rights of a substantive nature. In re Shuttle, 131 Vt. 457, 306 A.2d 667, 1973 Vt. LEXIS 333 (1973).

That presentence investigation report required by this section to be filed within one to three weeks of date it was ordered was not filed for thirty-eight days was not grounds for dismissal of the case where respondent did not show prejudice to his rights. In re Shuttle, 131 Vt. 457, 306 A.2d 667, 1973 Vt. LEXIS 333 (1973).

§ 204a. Sex offenders; presentence investigations; risk assessments; psychosexual evaluations.

  1. The Department of Corrections shall conduct a presentence investigation for all persons convicted of:
    1. lewd and lascivious conduct in violation of 13 V.S.A. § 2601 ;
    2. lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602 ;
    3. sexual assault in violation of 13 V.S.A. § 3252 ;
    4. aggravated sexual assault in violation of 13 V.S.A. § 3253 ;
    5. aggravated sexual assault of a child in violation of 13 V.S.A. § 3253 a;
    6. kidnapping with intent to commit sexual assault in violation of 13 V.S.A. § 2405(a)(1)(D) ; or
    7. an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64.
  2. A presentence investigation required by this section:
    1. Shall include an assessment of the offender’s risk of reoffense and a determination of whether the person is a high-risk offender.
    2. Shall include a psychosexual evaluation if so ordered by the court.
    3. Shall include information regarding the offender’s records maintained by the Department for Children and Families in the Child Protection Registry pursuant to 33 V.S.A. § 4916 if the offender was previously substantiated for child abuse or neglect.
    4. Shall include information, if any, regarding any deferred sentences received by the offender for a registrable sex offense in accordance with 13 V.S.A. § 7041(h) .
    5. Shall be completed before the defendant is sentenced. Upon completion, the Department shall submit copies of the presentence investigation to the court, the State’s Attorney, the defendant’s attorney, and the Department for Children and Families.  Copies of a presentence investigation authorized by this subdivision shall remain privileged and are not subject to public inspection.
    1. The Department of Corrections shall prepare a recommendation for programming and treatment for all persons for whom a presentence investigation is required under subsection (a) of this section. The Department shall consider the information contained in the presentence investigation when recommending the programming and treatment appropriate for the offender. (c) (1) The Department of Corrections shall prepare a recommendation for programming and treatment for all persons for whom a presentence investigation is required under subsection (a) of this section. The Department shall consider the information contained in the presentence investigation when recommending the programming and treatment appropriate for the offender.
    2. The recommendation required by this subdivision shall address the issue of the availability of appropriate treatment programs within correctional facilities and on an outpatient basis in the community, including recommendation as to the defendant’s eligibility for such treatment programs, and shall include a statement of the relevant policies of the Department of Corrections regarding parole recommendations for the offense of which the offender was convicted.
      1. The court may order the Department to provide a report including: (3) (A) The court may order the Department to provide a report including:
        1. the minimum and maximum sentences necessary to permit admission of the offender to any of the available treatment programs; and
        2. the results of a preassessment of the offender.
      2. A preassessment under this subdivision shall consist of:
        1. an interview with the defendant;
        2. an assessment of the offender’s risk level;
        3. completion of testing and any other steps necessary to make an appropriate programming decision for the defendant;
        4. identification of the treatment program within a correctional facility to which the offender will be referred based on the information available at the time of sentencing, provided the defendant agrees to treatment and is sentenced to a term which permits participation in the program.
        1. Except as provided in subdivision (ii) of this subdivision (C), the Department shall provide a report to the court under this subdivision within 60 days after it is ordered. (C) (i) Except as provided in subdivision (ii) of this subdivision (C), the Department shall provide a report to the court under this subdivision within 60 days after it is ordered.
        2. If the Department requires a psychosexual evaluation in order to determine whether the offender will be admitted into any of the available treatment programs, the Department shall complete the evaluation and provide it to the court along with its report within 90 days after the report is ordered.
  3. The requirement that a presentence investigation be performed pursuant to subsection (a) of this section shall not be interpreted to prohibit the performance of a presentence investigation, psychosexual evaluation, or risk assessment at any other time during the proceeding, including prior to the entry of a plea agreement or prior to sentencing for a violation of probation.
  4. Nothing in this section shall be construed to infringe in any manner upon the Department’s authority to make decisions about programming for defendants or to create a right on the part of the offender to receive treatment in a particular program.

HISTORY: Added 2005, No. 192 (Adj. Sess.), § 12, eff. May 26, 2006; 2009, No. 1 , § 36.

History

Revision note

—2008. In subdivs. (a)(1)-(5), substituted “of Title 13” for “of this title” for purposes of clarity and to correct an error in the references.

Amendments

—2009. Section heading: Substituted “sex” for “sexual” preceding “offenders” and “presentence” for “pre-sentence” preceding “investigations”.

Subsec. (a): Added subdivs. (5) and (6) and redesignated former subdiv. (5) as subdiv. (7).

Subsecs. (b) and (d): Amended generally.

§ 204b. High-risk sex offenders.

A person who is sentenced to an incarcerative sentence for a violation of any of the offenses listed in subsection 204a(a) of this title and who is designated by the Department of Corrections as high-risk pursuant to 13 V.S.A. § 5411b while serving his or her sentence shall not be eligible for parole, furlough, or any other type of early release until the expiration of 70 percent of his or her maximum sentence.

HISTORY: Added 2009, No. 1 , § 44.

ANNOTATIONS

Constitutionality.

With regard to defendant’s Ex Post Facto Clause claim, designating defendant “high risk” was for the sole purpose of increasing public access to his status as a sex offender and related information. Although the trial court held that the statute prohibiting early release until 70 percent of the defendant’s maximum sentence was completed violated the Ex Post Facto Clause, that statute had no legal effect on the length of defendant’s incarceration. Defendant could point to no statute or administrative directive that retroactively removed or limited the Vermont Department of Corrections’ discretion over his treatment programming and that consequently resulted in a longer period of incarceration. Chandler v. Pallito, 2016 VT 104, 203 Vt. 482, 158 A.3d 296, 2016 Vt. LEXIS 110 (2016).

Court does not find the 70 percent rule, in cases where it applies, to constitute a usurpation of judicial power. State v. Goewey, 2015 VT 142, 201 Vt. 37, 135 A.3d 1220, 2015 Vt. LEXIS 121 (2015).

Applicability.

Seventy percent rule does not apply in cases where the length of the maximum sentence is imprisonment for life, because 70 percent of that time is not capable of determination. State v. Goewey, 2015 VT 142, 201 Vt. 37, 135 A.3d 1220, 2015 Vt. LEXIS 121 (2015).

In creating the 70 percent rule, the Legislature obviously intended it to apply to fixed-period maximum sentences, that is, those which are measured by a term of years. State v. Goewey, 2015 VT 142, 201 Vt. 37, 135 A.3d 1220, 2015 Vt. LEXIS 121 (2015).

§ 205. Probation.

    1. After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the Commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court. (a) (1) After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the Commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court.
    2. The term of probation for misdemeanors shall be for a specific term not to exceed two years unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.
      1. The term of probation for nonviolent felonies shall not exceed four years or the statutory maximum term of imprisonment for the offense, whichever is less, unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation. (3) (A) The term of probation for nonviolent felonies shall not exceed four years or the statutory maximum term of imprisonment for the offense, whichever is less, unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.
      2. As used in this subdivision, “nonviolent felonies” means an offense that is not:
        1. a listed crime as defined in 13 V.S.A. § 5301(7) ; or
        2. an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64.
    3. Nothing in this subsection shall prevent the court from terminating the period of probation and discharging a person pursuant to section 251 of this title.
    4. The probation officer of a person on probation for a specific term shall review the person’s case file during probation and, not less than 45 days prior to the expiration of the probation term, may file a petition with the court requesting the court to extend the period of probation for a specific term not to exceed one year in order to provide the person the opportunity to complete programming consistent with special conditions of probation. A hearing on the petition for an extension of probation under this subsection shall comply with the procedures set forth in Rule 32.1 of the Vermont Rules of Criminal Procedure.
    1. At or before the sentencing hearing, the prosecutor’s office shall inform the victim of the midpoint review process for probationers, and that the defendant may be eligible for early discharge from probation pursuant to sections 251 and 252 of this title. (b) (1) At or before the sentencing hearing, the prosecutor’s office shall inform the victim of the midpoint review process for probationers, and that the defendant may be eligible for early discharge from probation pursuant to sections 251 and 252 of this title.
    2. The victim of a listed crime as defined in 13 V.S.A. § 5301(7) for which the offender has been placed on probation shall have the right to request and receive from the Department of Corrections information regarding the offender’s general compliance with the specific conditions of probation. Nothing in this section shall require the Department of Corrections to disclose any confidential information revealed by the offender in connection with participation in a treatment program.
    1. Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the offender shall be placed on administrative probation, which means that the only conditions of probation shall be that the probationer: (c) (1) Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the offender shall be placed on administrative probation, which means that the only conditions of probation shall be that the probationer:
      1. register with the Department of Corrections’ probation and parole office in his or her district;
      2. notify the probation officer of his or her current address each month;
      3. within 72 hours, notify the Department of Corrections if probable cause is found for a criminal offense during the term of probation; and
      4. not be convicted of a criminal offense during the term of probation.
    2. As used in this subsection, “qualifying offense” means:
      1. Unlawful mischief under 13 V.S.A. § 3701 .
      2. Retail theft under 13 V.S.A. §§ 2575 and 2577.
      3. Operating after suspension or revocation of license under 23 V.S.A. § 674(a) .
      4. Bad checks under 13 V.S.A. § 2022 .
      5. Theft of services under 13 V.S.A. § 2582 .
      6. Disorderly conduct under 13 V.S.A. § 1026 , unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7) .
      7. Theft of rented property under 13 V.S.A. § 2591 .
      8. Operation without consent of owner under 23 V.S.A. § 1094(a) .
      9. Petit larceny under 13 V.S.A. § 2502 .
      10. Negligent operation of a motor vehicle under 23 V.S.A. § 1091(a) .
      11. False reports to law enforcement under 13 V.S.A. § 1754 .
      12. Setting fires under 13 V.S.A. § 508 .
      13. [Repealed.]
      14. Simple assault by mutual consent under 13 V.S.A. § 1023(b) unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7) .
      15. Unlawful trespass under 13 V.S.A. § 3705(a) .
      16. A first offense of possession under 18 V.S.A. § 4230(a)(1) .
    3. Nothing in this subsection shall prohibit a court from requiring participation in the Restorative Justice Program established in chapter 12 of this title.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1995, No. 170 (Adj. Sess.), § 19, eff. Sept. 1, 1996; 1999, No. 4 , § 4; 2003, No. 145 (Adj. Sess.), § 1, eff. June 3, 2004; 2005, No. 192 (Adj. Sess.), § 18, eff. May 26, 2006; 2007, No. 179 (Adj. Sess.), § 4; 2009, No. 146 (Adj. Sess.), § D5; 2015, No. 147 (Adj. Sess.), § 9, eff. May 31, 2016; 2021, No. 24 , § 2.

History

Revision note

—2008. In subdiv. (a)(3)(B)(ii), substituted “chapter 64 of Title 13” for “chapter 6 of Title 13” to correct an error in the reference.

Amendments

—2021. Subsec. (b): Designated the existing provisions of subsec. (b) as subdiv. (b)(2) and added subdiv. (b)(1).

—2015 (Adj. Sess.). Subdiv. (c)(2)(M): Repealed.

—2009 (Adj. Sess.) Subdiv. (a)(3)(A): Inserted “four years or” and “whichever is less”.

—2007 (Adj. Sess.). Subsec. (c): Added.

—2005 (Adj. Sess.). Subsec. (a): Added the subdiv. designations and subdiv. (3).

—2003 (Adj. Sess.). Subsec. (a): Added the second through fifth sentences.

—1999. Subsec. (b): Substituted “ 13 V.S.A. § 5301(7) ” for “section 13 of Title 13”.

—1995 (Adj. Sess.) Designated the existing text of the section as subsec. (a) and added subsec. (b).

Applicability of 2003 (Adj. Sess.) amendment to sentences. 2003, No. 145 (Adj. Sess.), § 5 provides that Sec. 1 of that act [which amends subsec. (a) of this section] shall apply to sentences passed after June 30, 2004.

Prior law.

28 V.S.A. § 1208 .

CROSS REFERENCES

Conditions of probation, see § 252 of this title.

Deferred sentence, see § 7041 of Title 13.

Stay of probation order pending appeal, see Rule 38(d), Vermont Rules of Criminal Procedure.

Consecutive sentences.

Construction.

Discharge.

Length.

Termination of prescribed period.

Consecutive sentences.

Consecutive sentences are to be aggregated before partial or total suspension of any of the sentences is taken into account; after the sentences are aggregated, the fact that some of the sentences may be partially or completely suspended is considered to compute the manner in which a defendant will serve the aggregated sentences. St. Gelais v. Walton, 150 Vt. 245, 552 A.2d 782, 1988 Vt. LEXIS 161 (1988).

Construction.

The language of 28 V.S.A. § 304(a) , when read together with subsection (a) of this section, did not impliedly give the option to the sentencing court to suspend part of the underlying sentence upon finding a violation of parole. State v. Pratt, 173 Vt. 562, 795 A.2d 1148, 2002 Vt. LEXIS 4 (2002) (mem.).

The phrase “in accordance with law,” as used in this section, was intended to bind sentencing courts to comply with section 252 of this title, governing conditions of probation, not to limit the period of probation which a court may impose. Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895, 1979 Vt. LEXIS 910 (1979).

Discharge.

In cases where the period of probation is prescribed by the sentencing court, discharge from probation is automatic upon the expiration of the period. State v. White, 150 Vt. 132, 549 A.2d 1069, 1988 Vt. LEXIS 105 (1988).

Length.

Appellate court found it was the best interpretation of the interface between U.S. Sentencing Guidelines Manual § 4A1.2(c)(1)(A) and 28 V.S.A. § 205 that the duration of an indefinite sentence of probation for purposes of Guidelines § 4A1.2(c)(1)(A) was the duration of the period for which the sentencing court continued the probation in effect. Under this view, an indefinite term of probation was a term of probation of at least one year if the sentencing court continued the probation for at least one year. United States v. Tomasi, 313 F.3d 653, 2002 U.S. App. LEXIS 24495 (2d Cir. 2002).

When read as consistent with order from bench, court’s written order imposed an indeterminate probation period from which defendant was not to be discharged “until further order of court”; in this form, probation condition was explicitly authorized by subsection (a) of this section. State v. Lloyd, 169 Vt. 643, 740 A.2d 364, 1999 Vt. LEXIS 308 (1999) (mem.).

If no period is specified, probation may last longer than a defendant’s original sentence. State v. Bensh, 168 Vt. 607, 719 A.2d 1155, 1998 Vt. LEXIS 338 (1998) (mem.).

Parole board’s decision to place defendant on parole had no effect on his sentence, and defendant’s completion of parole had no bearing on his status as a probationer because he had not yet been released from probation; defendant therefore remained bound by probation agreement, and his probation was properly revoked for violation of its terms. State v. Bensh, 168 Vt. 607, 719 A.2d 1155, 1998 Vt. LEXIS 338 (1998) (mem.).

Prisoner who could have been imprisoned for up to one year would not, upon being imprisoned for breach of probation conditions, be released on the ground that he could not validly be placed on probation for a period exceeding the maximum possible prison term. Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895, 1979 Vt. LEXIS 910 (1979).

Termination of prescribed period.

Court did not have jurisdiction to act on defendant’s failure to live up to conditions of his probation where defendant’s prescribed probationary period had already terminated without the filing of a complaint or the issuance of an arrest warrant. State v. White, 150 Vt. 132, 549 A.2d 1069, 1988 Vt. LEXIS 105 (1988).

Cited.

Cited in State v. Benoit, 131 Vt. 631, 313 A.2d 387, 1973 Vt. LEXIS 368 (1973); Miner v. Chater, 137 Vt. 330, 403 A.2d 274, 1979 Vt. LEXIS 969 (1979); In re Hough, 143 Vt. 15, 458 A.2d 1134, 1983 Vt. LEXIS 447 (1983); State v. Murray, 159 Vt. 198, 617 A.2d 135, 1992 Vt. LEXIS 137 (1992); State v. DeRosa, 161 Vt. 78, 633 A.2d 277, 1993 Vt. LEXIS 93 (1993).

Cited.

Cited in State v. Gardner, 169 Vt. 566, 733 A.2d 732, 1999 Vt. LEXIS 22 (1999) (mem.).

Annotations From Former § 1208

Constitutionality.

Provision of this section which authorized court to suspend all or part of a sentence imposed and place the respondent in the care and custody of the state probation officer did not infringe upon the exclusive prerogative of the governor to issue pardons or conditional paroles, as provided in section 20 of chapter II of the Vermont Constitution.In re Hall, 100 Vt. 197, 136 A. 24, 1927 Vt. LEXIS 140 (1927).

Nature of probation.

Where court imposing sentence on person convicted of crime placed prisoner upon probation for definite time and committed him to custody of state probation officer, commitment to probation officer was not penal in character and could not be counted as time of undergoing punishment. In re Hall, 100 Vt. 197, 136 A. 24, 1927 Vt. LEXIS 140 (1927).

Revocation of suspension.

Court imposing sentence had jurisdiction to revoke suspension of such sentence upon proper cause being found. In re Hall, 100 Vt. 197, 136 A. 24, 1927 Vt. LEXIS 140 (1927).

§ 206. Expenses of probationer.

When a person is placed on probation, the Commissioner may expend such sums as deemed necessary for the temporary support of the person, his or her traveling expenses, or other purposes consistent with the policies of the Department regarding probationers.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law.

28 V.S.A. § 1213 .

§ 207. Final judgment.

Notwithstanding the fact that a sentence to probation can subsequently be modified or revoked in accordance with subchapters 2 and 3 of this chapter, a judgment that includes such a sentence shall constitute a final judgment for all other purposes.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20.

Subchapter 2. Conditions of Probation; Modifications; Discharge

Law Reviews —

For note, “Home Confinement as a Condition of Probation: A Proposal for Vermont,” see 12 Vt. L. Rev. 123 (1987).

§ 251. Duration of probation.

  1. The court placing a person on probation may terminate the period of probation and discharge the person at any time if such termination is warranted by the conduct of the offender and the ends of justice.
    1. Upon the Commissioner’s motion to discharge pursuant to subsection 252(d) of this title, the sentencing court shall terminate the period of probation and discharge the person at the midpoint of the probation term unless the prosecutor seeks a continuation of probation within 21 days of receipt of notice of the Commissioner’s motion; and (b) (1) Upon the Commissioner’s motion to discharge pursuant to subsection 252(d) of this title, the sentencing court shall terminate the period of probation and discharge the person at the midpoint of the probation term unless the prosecutor seeks a continuation of probation within 21 days of receipt of notice of the Commissioner’s motion; and
      1. the court finds by a preponderance of the evidence that termination and discharge will present a risk of danger to the victim of the offense or to the community; or
      2. the court finds by clear and convincing evidence that the probationer is not substantially in compliance with the conditions of probation that are related to the probationer’s rehabilitation or to victim or community safety.
    2. If the court grants the prosecutor’s motion to continue probation, it may continue probation for the full term or any portion thereof. The court shall also review the conditions of probation and remove any conditions that are no longer necessary for the remainder of the term.
  2. A probationer shall not be deemed ineligible for discharge or term reduction due to unpaid restitution, fees, or surcharges.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 2021, No. 24 , § 3.

History

Amendments

—2021. Designated the existing provisions of this section as subsec. (a) and added subsecs. (b) and (c).

ANNOTATIONS

Application.

This section applies in cases where early discharge of the probationer is deemed appropriate, not where the period of probation is fixed in length. State v. White, 150 Vt. 132, 549 A.2d 1069, 1988 Vt. LEXIS 105 (1988).

Consecutive sentence.

When a prisoner on probation is convicted of a subsequent offense, criterion imposed by section 7032 of Title 13, governing imposition of consecutive sentences, that a subsequent conviction must occur before the defendant has been discharged from a prior sentence, must be read with reference to this section and section 255 of this title, governing discharge from probation; together, they permit a subsequent court, in its discretion, to impose a sentence consecutive to probation. In re Hough, 143 Vt. 15, 458 A.2d 1134, 1983 Vt. LEXIS 447 (1983).

Early termination.

Trial court properly held that it lacked the authority to terminate defendant’s probation obligations and expunge his criminal convictions halfway through his stipulated deferred-sentence term, as the term of deferment could not be shortened without the State’s consent, and allowing defendant to escape the agreement’s burden after he had benefited from it would not advance the ends of justice. State v. Love, 2017 VT 66, 205 Vt. 222, 172 A.3d 777, 2017 Vt. LEXIS 142 (2017).

Extension of probation.

Without provision of notice to defendant of her violation of probation during its term, court was without authority to extend defendant’s probation after it had expired. State v. Murray, 159 Vt. 198, 617 A.2d 135, 1992 Vt. LEXIS 137 (1992).

Hearing.

Probationer is entitled to a hearing on disputed material facts before the trial court can order a less-than-satisfactory discharge from probation. State v. Nolen, 2012 VT 106, 193 Vt. 116, 71 A.3d 1213, 2012 Vt. LEXIS 105 (2012).

Actions by the trial court affecting defendant’s probationary status and freedom, such as a revocation of probation, require a hearing on the merits. Attaching the label of “unsatisfactory” to a defendant’s discharge from probation constitutes a legally adverse action by the trial court which requires the State to prove unsatisfactory performance and entitles the defendant to respond to the State’s allegations. State v. Nolen, 2012 VT 106, 193 Vt. 116, 71 A.3d 1213, 2012 Vt. LEXIS 105 (2012).

Length of sentence.

If no period is specified, probation may last longer than a defendant’s original sentence. State v. Bensh, 168 Vt. 607, 719 A.2d 1155, 1998 Vt. LEXIS 338 (1998) (mem.).

Parole board’s decision to place defendant on parole had no effect on his sentence, and defendant’s completion of parole had no bearing on his status as a probationer because he had not yet been released from probation; defendant therefore remained bound by probation agreement, and his probation was properly revoked for violation of its terms. State v. Bensh, 168 Vt. 607, 719 A.2d 1155, 1998 Vt. LEXIS 338 (1998) (mem.).

Unsatisfactory discharge.

Absent a stipulation between the parties, the trial court abused its discretion by issuing an adverse order of unsatisfactory discharge with neither findings on the underlying basis for its determination nor an opportunity for defendant to be heard on the facts in dispute. State v. Nolen, 2012 VT 106, 193 Vt. 116, 71 A.3d 1213, 2012 Vt. LEXIS 105 (2012).

Although the trial court erred in ordering without a hearing that defendant receive an unsatisfactory discharge from probation, the court declined to order a satisfactory discharge from probation. Whether defendant was entitled to a satisfactory discharge, and on what grounds, could be considered by the trial court on remand. State v. Nolen, 2012 VT 106, 193 Vt. 116, 71 A.3d 1213, 2012 Vt. LEXIS 105 (2012).

Cited.

Cited in Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895, 1979 Vt. LEXIS 910 (1979); State v. Allen, 145 Vt. 393, 488 A.2d 775, 1985 Vt. LEXIS 306 (1985); State v. Whitchurch, 155 Vt. 134, 577 A.2d 690, 1990 Vt. LEXIS 90 (1990); State v. Lloyd, 169 Vt. 643, 740 A.2d 364, 1999 Vt. LEXIS 308 (1999); United States v. Tomasi, 313 F.3d 653, 2002 U.S. App. LEXIS 24495 (2d Cir. 2002) (mem.).

§ 252. Conditions of probation and midpoint review.

  1. Conditions, generally.   The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist the offender to do so. The court shall provide as an explicit condition of every sentence to probation that if the offender is convicted of another offense during the period for which the sentence remains subject to revocation, then the court may impose revocation of the offender’s probation.
  2. Probation conditions.   When imposing a sentence of probation, the court may, as a condition of probation, require that the offender:
    1. Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip the offender for suitable employment.
    2. Work faithfully for a prescribed number of hours at community service activity acceptable to the court, or if so ordered by the court, acceptable to a probation officer.
    3. Undergo available medical or psychiatric treatment and remain at a specified institution if required for that purpose.
    4. Attend or reside at a facility established for the instruction, recreation, or residence of persons on probation.
    5. Support the offender’s dependents and meet other family responsibilities.
    6. Make restitution or reparation to the victim of his or her conduct, or to the Victims’ Compensation Fund to the extent it has made payment to or on behalf of the victim in accordance with 13 V.S.A. chapter 167, for the damage or injury which was sustained. When restitution or reparation is a condition of the sentence, the court, in accordance with 13 V.S.A. § 7043 , shall fix the amount thereof, which shall not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance.
    7. Pay a fine authorized in accordance with law.
    8. Refrain from purchasing or possessing a firearm or ammunition therefor, destructive device, or other dangerous weapon unless granted written permission by the court or probation officer.
    9. Report to a probation officer at reasonable times as directed by the court or the probation officer.
    10. Permit the probation officer to visit the offender at reasonable times at his or her home or elsewhere.
    11. Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer.
    12. Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment.
    13. Not in any way harass the victim or the family of the victim.
    14. Not contact the victim, unless this condition is specifically waived by the victim.
    15. Participate in the Restorative Justice Program conducted by a community reparative board, pursuant to chapter 12 of this title. The court may direct a reparative board to assist in determining restitution to the victim, as provided by subdivision (6) of this subsection.
    16. Submit to periodic polygraph testing if the offender is being placed on probation for a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3.
    17. If the probation officer has reasonable grounds to believe the offender has violated a probation condition, permit a probation officer or designee to monitor or examine the offender’s activities, communications, and use of any computer or other digital or electronic media, including cell phone, smartphone, digital camera, digital video camera, digital music player or recorder, digital video player or recorder, personal digital assistant, portable electronic storage device, gaming system, or any other contemporary device capable of the storage of digital electronic communication or data storage or access to the Internet or other computer or digital network.
    18. Satisfy any other conditions reasonably related to his or her rehabilitation. Such conditions may include prohibiting the use of alcohol, prohibiting having contact with minors, prohibiting or limiting the use of a computer or other electronic devices, and permitting a probation officer access to all computers or other digital or electronic media, mail covers, subscription services, and credit card statements. The court shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender’s rehabilitation or necessary to reduce risk to public safety.
  3. Certificate.   When an offender is placed on probation, he or she shall be given a certificate explicitly setting forth the conditions upon which he or she is being released.
  4. Review and recommendation for discharge.
    1. The Commissioner shall review the record of each probationer serving a specified term during the month prior to the midpoint of that probationer’s specified term and shall file a motion requesting the sentencing court to dismiss the probationer from probation if the offender:
      1. has not been found by the court to have violated the conditions of probation in the six months prior to the review;
      2. is not serving a sentence for committing a crime specified in 13 V.S.A. chapter 19, subchapters 6 and 7; 13 V.S.A. chapter 72, subchapter 1; or 13 V.S.A. § 2602 ; and
      3. has completed those rehabilitative or risk reduction services required as a condition of probation that have a duration that is set and knowable at the outset of probation.
    2. If the probationer does not meet the criteria set forth in subdivision (1) of this subsection, or if the court denies the Commissioner’s motion to discharge, the Commissioner shall file a motion requesting the sentencing court to discharge the probation term once the probationer meets the criteria set forth in subdivision (1) of this subsection.
    3. The prosecutor shall make a reasonable effort to notify any victim of record of a motion filed to reduce a probationer’s term pursuant to this subsection. “Reasonable effort” means attempting to contact the victim by first-class mail at the victim’s last known address and by telephone at the victim’s last known phone number.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1983, No. 229 (Adj. Sess.), § 5; 1993, No. 169 (Adj. Sess.), § 3, June 3, 1994; 1995, No. 170 (Adj. Sess.), § 20, eff. Sept. 1, 1996; 1999, No. 148 (Adj. Sess.), § 66, eff. May 24, 2000; 2001, No. 134 (Adj. Sess.), § 5; 2007, No. 179 (Adj. Sess.), § 5; 2009, No. 1 , § 39; 2021, No. 24 , § 4.

History

Amendments

—2021. Section heading: Added “and midpoint review” following “probation”.

Subsecs. (a)-(c): Added subsection headings.

Subsec. (d): Amended generally.

—2009. Subsec. (b): Added new subdivs. (16) and (17), redesignated former subdiv. (16) as subdiv. (18), and added the second sentence in that subdiv.

—2007 (Adj. Sess.). Subdiv. (b)(16): Added the second sentence.

Subsec. (d): Added.

—2001 (Adj. Sess.) Subdiv. (b)(6): Inserted “or her” in the first sentence, and “in accordance with section 7043 of Title 13” in the second sentence.

—1999 (Adj. Sess.). Subsec. (b): Added new subdiv. (15) and redesignated former subdiv. (15) as present subdiv. (16).

—1995 (Adj. Sess.) Added present subdivs. (13) and (14) and redesignated former subdiv. (13) as subdiv. (15).

—1993 (Adj. Sess.). Subdiv. (b)(6): Inserted “or to the victims’ compensation fund to the extent it has made payment to or on behalf of the victim in accordance with chapter 167 of Title 13” following “conduct” in the first sentence.

—1983 (Adj. Sess.). Subsec. (b): Added a new subdiv. (2) and redesignated former subdivs. (2)-(12) as (3)-(13).

Prior law.

28 V.S.A. § 1214 .

CROSS REFERENCES

Hearing on modification of probation, see Rule 32.1(b), Vermont Rules of Criminal Procedure.

Requirement of restitution generally, see § 7043 of Title 13.

Generally.

Ability to pay.

Amount.

Civil damages.

Compliance.

Construction with other laws.

Damages not recoverable.

Damages recoverable.

Findings.

Insurers.

Manner of performance.

Nature and purpose.

Notice of conditions.

Particular conditions.

Review.

Violation of conditions.

—Prerequisites.

Generally.

The Legislature placed the power to impose probation conditions on the court, and not on the corrections department and its employees; similarly, the power to modify probation conditions also rests exclusively with the courts. State v. Rivers, 2005 VT 65, 178 Vt. 180, 878 A.2d 1070, 2005 Vt. LEXIS 145 (2005).

A probation condition is valid if the conduct it requires is not itself criminal and is reasonably related to the crime of which the defendant was convicted. State v. Peck, 149 Vt. 617, 547 A.2d 1329, 1988 Vt. LEXIS 88 (1988).

Probation conditions are statutorily authorized and constitutionally permissible if they are reasonably related to the crime for which defendant was convicted and to the purposes of sentencing, including the goal of rehabilitation, and if they are not unduly restrictive of the probationer’s liberty or autonomy. State v. Whitchurch, 155 Vt. 134, 577 A.2d 690, 1990 Vt. LEXIS 90 (1990).

Due process requires that a defendant receive fair notice as to what acts may constitute a violation of his probation; in addition to the statutorily mandated certificate setting forth the conditions of release, the instructions and directions given by the probation officer can serve to provide fair notice. State v. Gleason, 154 Vt. 205, 576 A.2d 1246, 1990 Vt. LEXIS 60 (1990).

Ability to pay.

Where defendant agreed to pay restitution as part of a plea bargain agreement and did not testify at hearing, burden was on the state to prove defendant’s ability to pay and defendant’s right under subdivision (b)(6) of this section to a determination of his ability to pay was not waived. State v. Sausville, 151 Vt. 120, 557 A.2d 502, 1989 Vt. LEXIS 16 (1989).

Amount.

In ordering restitution as a condition of probation under this section the court, in calculating the amount of restitution cannot order restitution to exceed the defendant’s ability to pay. State v. Curtis, 140 Vt. 621, 443 A.2d 454, 1982 Vt. LEXIS 467 (1982).

In requiring, as a condition of probation, restitution to the victim for the damages sustained, the measure of damages to a motor vehicle is fair market value before the injury less fair market value after the injury. State v. Curtis, 140 Vt. 621, 443 A.2d 454, 1982 Vt. LEXIS 467 (1982).

Where operator of motor vehicle was convicted of careless and negligent driving, and the trial court, as a condition of probation, ordered restitution to the owner of an automobile which the defendant had struck and damaged in the course of committing the offense, but there was no credible evidence in the record on appeal to support the court’s conclusion as to the amount of restitution order could not stand. State v. Curtis, 140 Vt. 621, 443 A.2d 454, 1982 Vt. LEXIS 467 (1982).

Civil damages.

A restitution order in a criminal case is not the same as, and is no substitute for, an award of civil damages. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005, 1986 Vt. LEXIS 350 (1986).

Compliance.

Compliance with probation terms may not be put beyond the probationer’s control. State v. Bubar, 146 Vt. 398, 505 A.2d 1197, 1985 Vt. LEXIS 396 (1985).

Construction with other laws.

Subdivision (b)(6) of this section, which generally allows restitution as a condition of probation, is limited by section 7043 of Title 13, which specifically explains when restitution must be considered and what restitution may include. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005, 1986 Vt. LEXIS 350 (1986).

Subdivision (b)(6) of this section, which generally allows restitution as a condition of probation, is limited by section 7043 of Title 13, which specifically explains when restitution must be considered and what restitution may include. State v. Webb, 151 Vt. 200, 559 A.2d 658, 1989 Vt. LEXIS 33 (1989).

Probation conditions may impact upon a probationer’s First Amendment rights so long as conditions have a reasonable nexus with rehabilitation of defendant and protection of public; court has broad discretion in setting conditions of probation, and may require a probationer to satisfy any conditions reasonably related to his rehabilitation. State v. Lockwood, 160 Vt. 547, 632 A.2d 655, 1993 Vt. LEXIS 90 (1993).

Damages not recoverable.

The trial court did not have the statutory authority to require defendant, convicted of driving under the influence, death resulting, as a condition of probation, to pay restitution for partial support to the deceased victim’s dependents. State v. Fontaine, 167 Vt. 529, 711 A.2d 667, 1998 Vt. LEXIS 156 (1998).

Damages that are not readily ascertainable, such as pain and suffering, emotional trauma, loss of earning capacity, and wrongful death awards are not proper subjects of restitution. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005, 1986 Vt. LEXIS 350 (1986).

Section 7043 of Title 13, governing restitution in sentencing, and subdivision (b)(6) of this section, authorizing restitution as a condition of probation, do not allow restitutory awards for a victim’s pain and suffering or emotional trauma. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005, 1986 Vt. LEXIS 350 (1986).

Damages recoverable.

The mere fact that a restitution award for extradition expenses exceeded the maximum fine allowable for escape did not make it improper, because the Legislature did not intend to limit such damages based on the dollar amount in the charge against the defendant. State v. Lewis, 167 Vt. 533, 711 A.2d 669, 1998 Vt. LEXIS 165 (1998).

The Department of Corrections was the immediate and intended “victim” of defendant’s criminal conduct (escape) for purposes of awarding restitution for extradition expenses. State v. Lewis, 167 Vt. 533, 711 A.2d 669, 1998 Vt. LEXIS 165 (1998).

Only liquidated amounts which are easily ascertained and measured are recoverable as restitution under this section; these amounts include, but are not necessarily limited to, hospital bills, property value, and lost employment income. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005, 1986 Vt. LEXIS 350 (1986).

Findings.

Where person convicted of welfare fraud is placed on probation with an order of restitution, record must show findings as to whether order is for an amount the convicted person can or will be able to pay and the order must set out the manner of performance. State v. Godfrey, 131 Vt. 629, 313 A.2d 390, 1973 Vt. LEXIS 367 (1973); State v. Benoit, 131 Vt. 631, 313 A.2d 387, 1973 Vt. LEXIS 368 (1973).

Where operator of motor vehicle was convicted of careless and negligent driving, and the trial court, as a condition of probation, ordered restitution to the owner of an automobile which the defendant had struck and damaged in the course of committing th offense, gut the record was devoid of any finding by the trial court as to the defendant’s ability to pay, the restitution order could not stand. State v. Curtis, 140 Vt. 621, 443 A.2d 454, 1982 Vt. LEXIS 467 (1982).

Insurers.

Restitution paid to “victim” under this section may not include payments to insurers of persons directly injured by offender’s conduct. State v. Webb, 151 Vt. 200, 559 A.2d 658, 1989 Vt. LEXIS 33 (1989).

Under provision authorizing payment of restitution as a condition of probation, there is no general exclusion of insurance companies from the category of victim; holding of State v. Webb, 151 Vt. 200, 559 A.2d 658 (1989), proscribed only the payment of restitution to insurance companies as indirect victims, not to insurance companies per se. State v. Bonfanti, 157 Vt. 625, 603 A.2d 365, 1991 Vt. LEXIS 233 (1991).

Trial court order that arson defendant make restitution to insurance companies, which paid off defendant’s mortgage after fire in defendant’s building, was within court’s discretion; as such, it would not be disturbed on review. State v. Bonfanti, 157 Vt. 625, 603 A.2d 365, 1991 Vt. LEXIS 233 (1991).

Manner of performance.

Even though defendant signed an agreement with her probation officer specifying manner in which restitution was to be paid, this section required that the “manner of performance” be set by the court, not the probation department. State v. Guinard, 169 Vt. 555, 726 A.2d 88, 1999 Vt. LEXIS 28 (1999) (mem.).

Nature and purpose.

Although the probation conditions imposed might be “standard” in the sense that they appeared in an internal judiciary probation order template, as well as a standard plea agreement form generated by the Court Administrator, the inclusion of these particular conditions on a form labeled “standard conditions” did not reflect a judicial determination that every condition included was presumptively valid, or that the whole package of conditions could be applied in every case; nor did this reflect a judicial determination that all of the conditions were constitutional and valid on their face and provided adequate notice of what conduct might lead to a revocation of probation. The only truly “standard” condition was the one providing that the court could revoke probation if the offender was convicted of another offense while the sentence was still subject to revocation. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

A trial court’s decision to suspend criminal sentence and impose conditions of probation, under statute, represents an essential tool in court’s ability to shape a criminal sentence to rehabilitative needs of individual defendant. State v. Nelson, 170 Vt. 125, 742 A.2d 1248, 1999 Vt. LEXIS 332 (1999).

Purpose of probation is to provide the opportunity for a defendant to voluntarily condition his behavior according to the requirements of the law and test his ability to do so, and as such it is prospective, based on a promise of future conduct. State v. Hale, 137 Vt. 162, 400 A.2d 996, 1979 Vt. LEXIS 959 (1979).

Notice of conditions.

Even if the probation order did not satisfy the requirement that a probationer be given a certificate explicitly setting forth the conditions of probation, there was no plain error, as defendant received a probation order listing all of the conditions, defendant was fully aware of the information that was allegedly not provided, and any error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. State v. Gauthier, 2016 VT 37, 201 Vt. 543, 145 A.3d 833, 2016 Vt. LEXIS 36 (2016).

Statute requires only that the probationer receive a probation certificate; nothing in the statute requires a defendant to sign the probation certificate, and to hold that probation does not begin until a defendant signs a probation certificate would give a defendant veto power over when the terms of probation commenced. A signature acknowledging receipt of the probation certificate is one, but not the only, way to establish that a probationer has received the required probation certificate. State v. Anderson, 2016 VT 40, 202 Vt. 1, 146 A.3d 876, 2016 Vt. LEXIS 43 (2016).

Trial court’s failure to comply with the provision requiring that a probationer receive a certificate explicitly setting forth the conditions upon which he or she is being released makes the probation condition unenforceable. State v. Hemingway, 2014 VT 48, 196 Vt. 441, 97 A.3d 465, 2014 Vt. LEXIS 49 (2014).

When defendant did not receive a certificate explicitly setting forth his probation conditions, his violation of probation could not stand without the explicit written notice required by law. State v. Hemingway, 2014 VT 48, 196 Vt. 441, 97 A.3d 465, 2014 Vt. LEXIS 49 (2014).

Particular conditions.

Probation condition that prohibited defendant from engaging in criminal behavior, which was imposed after a jury convicted him of unlawful trespass, was reasonably necessary to ensure that defendant would live a law-abiding life and was well within the trial court’s statutory discretion to impose; furthermore, the condition did not reach lawful behavior and was neither vague nor unclear, and it did not give probation officers untethered discretion in that courts retained the power to revoke probation if the statutory requirements were met. State v. Richards, 2021 VT 40, 256 A.3d 94, 2021 Vt. LEXIS 52 (Vt. 2021).

Probation condition that defendant avoid pornography was improper when there was no evidence that pornography was related to his offense, his individual history, or his behaviors or that the condition was generally necessary for the rehabilitation of all sex offenders; the fact that the pornography condition was part of the sex-offender treatment program defendant was otherwise required to complete was not sufficient to support the condition. State v. Bouchard, 2020 VT 10, 211 Vt. 454, 228 A.3d 349, 2020 Vt. LEXIS 9 (2020).

Because a probation condition imposed upon defendant, a sex offender, on its face authorized limitless monitoring of his computer and internet use, it was not narrowly tailored to ensure a permissible balance between the government’s interests and defendant’s privacy rights, and was not reasonably necessary to help defendant lead a law-abiding life. State v. Bouchard, 2020 VT 10, 211 Vt. 454, 228 A.3d 349, 2020 Vt. LEXIS 9 (2020).

Probation condition regarding pornography, erotica, and sexual establishments was not supported by the evidence. The record did not show that the crime—sexual assault of an adult—was connected to pornography, erotica, adult bookstores, sex shops, topless bars, or other similar establishments, nor did the State present evidence that defendant’s individual history or behaviors supported the condition as part of his rehabilitation or for the protection of the public. State v. Lumumba, 2018 VT 40, 207 Vt. 254, 187 A.3d 353, 2018 Vt. LEXIS 36 (2018).

Defendant failed to show why a probation condition completely prohibiting his alcohol possession or use was unreasonable under the circumstances. The trial court was concerned about the nature of the offense, a public brawl where defendant committed an aggravated assault while drunk and armed with a knife, and felt total abstinence from alcohol was warranted to aid in defendant’s rehabilitation. State v. Urban, 2018 VT 25, 207 Vt. 13, 184 A.3d 731, 2018 Vt. LEXIS 20 (2018).

Because a condition that defendant not buy, have or use any regulated drugs unless prescribed precluded conduct that was criminal, the trial court was not required to find a reasonable relationship between defendant’s conviction and the condition. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

Because defendant’s conviction was not related to the use of drugs or alcohol and there was no evidence that he abused drugs or alcohol, a condition allowing defendant’s probation officer to require him to submit to random urinalysis testing was invalid. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

Probation condition stating that defendant was not to drink alcoholic beverages to the extent it interfered with his employment or the welfare of himself or his family, and that he had to submit to an alco sensor test if required by his probation officer was not supported by sufficient evidence of a reasonable relationship between defendant, the crime for which he was convicted, and the condition. Drinking alcohol to excess was not criminal, and there was no evidence that defendant’s conduct leading to his conviction was related to alcohol use. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

Insofar as defendant was convicted of a crime relating to the operation of a motor vehicle, the court could reasonably conclude that a probation condition specifically requiring that defendant not drive without a license was reasonably related to his rehabilitation. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

Probation condition requiring defendant to repay any unpaid amounts due for any legal services provided at state expense solely applied to a court order arising from defendant’s prosecution for the crime for which he was convicted and was therefore sufficiently related to his rehabilitation, in light of the crime of which he was convicted. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

Probation condition requiring defendant to attend any counseling or training program designated by his probation officer and to participate to the satisfaction of his probation officer was an unlawful delegation of authority, as the probation condition gave the probation officer complete discretion in deciding whether and which counseling or training program defendant would attend, and was unsupported by particularized findings justifying not only the condition requiring counseling or training, but the broad delegation to the probation officer to determine the type of counseling or training. The error was plain, as the delegation deprived defendant of a substantial right and affected the integrity of the judicial process by giving the probation officer authority reserved to the courts. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

Probation conditions relating to the supervision of defendant by his probation officer were reasonably related to aiding defendant in leading a law-abiding life in light of the crime for which he was convicted, and were within the trial court’s discretion. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

There were no grounds to impose a probation condition requiring defendant to regularly work at a job, look for work, or get job training if required by his probation officer. Defendant was on disability at the time of the hearing, and there was no suggestion in the record that his criminal conduct was connected to his lack of employment or that getting a job, instead of remaining on disability, would help him become more stable or reduce his risk of reoffending; in fact, there was no evidence that defendant was capable of working. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

Because the trial court neither ordered community service nor imposed restitution, probation conditions connected to community service and restitution imposed no real requirement on defendant and were inapplicable. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

Because there was no evidence that defendant was subject to any court orders concerning support for his family, that he had failed in any way to meet his legal obligations to any family members, or that the conduct leading to his conviction was part of a broader pattern of neglecting his responsibilities, including familial responsibilities, a condition requiring him to support his dependents and meet his family obligations was not reasonably related to defendant and the crime for which he was convicted such that it was a reasonable component of his rehabilitation. State v. Putnam, 2015 VT 113, 200 Vt. 257, 130 A.3d 836, 2015 Vt. LEXIS 92 (2015).

Condition of defendant’s probation that restricted his place of residence was not overbroad or unduly restrictive because it was related to the rehabilitative purpose of keeping defendant near the supervision of his family and his employer. State v. Pettitt, 2014 VT 98, 197 Vt. 403, 104 A.3d 85, 2014 Vt. LEXIS 97 (2014).

Where a probation condition proscribed defendant’s interaction with all children under the age of sixteen, but made no mention of specific public locations or events where children are often present, by prohibiting defendant from attending a fair, his probation officer converted the probation condition from a contact-based condition to a location-based condition, and in so doing, the officer crossed the line between condition interpretation and modification. State v. Rivers, 2005 VT 65, 178 Vt. 180, 878 A.2d 1070, 2005 Vt. LEXIS 145 (2005).

By providing for mandatory one-year license suspension for DUI with fatality resulting, and vesting commissioner of motor vehicles with exclusive authority to calculate suspensions and revocations, Legislature did not expressly or impliedly preempt trial court’s probationary power to limit a defendant’s operating privileges for longer periods; had Legislature actually intended to eliminate trial court’s discretion to prohibit a defendant from driving as a condition of probation for grave vehicular offenses, it would have plainly said so. State v. Nelson, 170 Vt. 125, 742 A.2d 1248, 1999 Vt. LEXIS 332 (1999).

Where defendant pleaded nolo contendere to simple assault and the information which formed the basis of the charge and the presentence investigation report revealed that the assault was of a sexual nature, probation condition that defendant participate in a sexual offender’s counseling group was not an abuse of discretion, since it was reasonably related to the crime and might serve to protect the public against similar misconduct in the future. State v. Peck, 149 Vt. 617, 547 A.2d 1329, 1988 Vt. LEXIS 88 (1988).

Trial court did not err in refusing to strike as facially over broad or vague probation condition that prohibited probationer convicted of sexual lewdness with daughter from living with his children or contacting them without approval of probation officer. State v. Whitchurch, 155 Vt. 134, 577 A.2d 690, 1990 Vt. LEXIS 90 (1990).

Sentencing court exceeded its discretion under subdivision (b)(13) of this section by ordering that probation be subject to the special condition that offender not be in the presence of a female person other than his wife unless another adult person was present. State v. Bubar, 146 Vt. 398, 505 A.2d 1197, 1985 Vt. LEXIS 396 (1985).

Probation condition requiring defendant to submit to polygraph examinations was related to the offense for which he was convicted, as this type of non-evidentiary use of a polygraph examination would help ensure that he was on track with both his rehabilitation and sex offender therapy, as well as ensure public safety, all of which related to the goals of probation and compliance investigation. State v. Campbell, 2015 VT 50, 199 Vt. 78, 120 A.3d 1148, 2015 Vt. LEXIS 30 (2015).

Trial court did not err in ordering defendant, who was convicted of unlawful trespass after refusing to leave his ex-girlfriend’s car, to complete a Domestic Abuse Education Program as a condition of probation even though he was not convicted of a crime of violence. The trial court provided reasonable grounds for its decision in that it found that the crime here had been motivated by power and control issues and that defendant needed to address these issues to prevent similar incidents from recurring. State v. Stokes, 2013 VT 63, 194 Vt. 351, 83 A.3d 567, 2013 Vt. LEXIS 55 (2013).

As imposed, a probation condition requiring defendant to seek his probation officer’s approval regarding his employment was overbroad and unduly restrictive, as it gave the probation officer the authority to control defendant’s place of employment without any guiding standards, subject only to the qualification that approval “shall not be unreasonably withheld,” and without any findings of fact explaining why such a broad delegation of authority was necessary. State v. Campbell, 2015 VT 50, 199 Vt. 78, 120 A.3d 1148, 2015 Vt. LEXIS 30 (2015).

Review.

Defendant had waived his right to collaterally attack a condition of probation by failing to challenge it after conviction. State v. Amidon, 2010 VT 46, 2010 VT 46A, 188 Vt. 617, 8 A.3d 1050, 2010 Vt. LEXIS 83 (2010) (mem.).

Although not without limitation, a trial court’s discretion in imposing conditions of probation is expansive, and will generally be upheld if probation condition is reasonably related to crime for which defendant was convicted. State v. Nelson, 170 Vt. 125, 742 A.2d 1248, 1999 Vt. LEXIS 332 (1999).

Violation of conditions.

Requirement that a defendant be provided with a certificate explicitly setting forth the conditions upon which he or she is being released on probation is not satisfied by a plea agreement, because the conditions of release are ultimately still set by the court at sentencing, and not by the prosecutor during plea negotiations; the conditions of release thus do not necessarily reflect all the prosecutor seeks. The terms of the plea agreement, therefore, may not be used alone to prove a violation of probation; only a signed probation order may be so used. State v. Hemingway, 2014 VT 48, 196 Vt. 441, 97 A.3d 465, 2014 Vt. LEXIS 49 (2014).

Retraction of probation, to be consistent with the objectives of its statutory justification, should be reserved for behavior that breaches its conditions after the probationary agreement is entered into, and to arbitrarily withdraw probation without any violative act on the person’s part is to reduce the state’s performance to something close to capricious, and a departure from the statutory objectives. State v. Hale, 137 Vt. 162, 400 A.2d 996, 1979 Vt. LEXIS 959 (1979).

Revocation of probation for an act or failure to act contrary to a condition of probation must be based on an act or failure to act occurring after conditions of probation are agreed to. State v. Hale, 137 Vt. 162, 400 A.2d 996, 1979 Vt. LEXIS 959 (1979).

Where defendant on probation under condition that he not be convicted of another offense was convicted of an offense which occurred prior to his being placed on probation for the first offense, he could not be charged with violating the terms of probation and his probation could not be revoked. State v. Hale, 137 Vt. 162, 400 A.2d 996, 1979 Vt. LEXIS 959 (1979).

—Prerequisites.

In ordering restitution under this section, the court must first determine whether the criminal conduct caused damage and the amount of that damage. State v. Curtis, 140 Vt. 621, 443 A.2d 454, 1982 Vt. LEXIS 467 (1982).

Cited.

Cited in Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895, 1979 Vt. LEXIS 910 (1979); In re Fadden, 148 Vt. 116, 530 A.2d 560, 1987 Vt. LEXIS 460 (1987); Mace v. Amestoy, 765 F. Supp. 847, 1991 U.S. Dist. LEXIS 7919 (D. Vt. 1991); State v. Katon, 168 Vt. 274, 719 A.2d 430, 1998 Vt. LEXIS 246 (1998).

Annotations From Former § 1208

Discretion of court.

Court should be allowed wide discretion in imposing conditions of probation, but such discretion is not without limitation. State v. Barnett, 110 Vt. 221, 3 A.2d 521, 1939 Vt. LEXIS 132 (1939).

Restitution.

Restitution which respondent could be required to make as a condition of placing him on probation must be for loss sustained as direct consequence of commission of particular crime of which respondent stood convicted. State v. Barnett, 110 Vt. 221, 3 A.2d 521, 1939 Vt. LEXIS 132 (1939).

Condition imposed by court in probation order that respondent convicted of leaving scene of accident make weekly payments apparently in settlement of claim for damages arising out of the accident was illegal and void as being against public policy. State v. Barnett, 110 Vt. 221, 3 A.2d 521, 1939 Vt. LEXIS 132 (1939).

§ 252a. Review of probation conditions.

  1. When the court imposes a sentence upon a defendant who has been convicted of an offense enumerated in section 204a of this title that includes a period of incarceration of more than one year to serve to be followed by probation, the court may make the probation contingent on the offender fulfilling specific stated conditions, such as taking part in treatment while incarcerated, and may modify, following a hearing pursuant to subsection (c) of this section, the conditions of probation if a violation has occurred.  The court shall review the probation conditions imposed at the time of sentencing after the incarceration portion of the sentence has been served, and prior to the offender’s release to probation. Such review shall include information about the offender developed after the date of sentencing, including information about the offender’s incarceration period.
  2. For an offender whose probation is contingent on fulfilling conditions pursuant to subsection (a) of this section, the Department of Corrections shall prepare a prerelease probation report to the court at least 30 days prior to the release based upon information available to the Department.  The prerelease probation report shall include the offender’s degree of participation in treatment while incarcerated, whether conditions imposed under subsection (a) of this section were complied with, and other information relevant to the offender’s release to the probationary sentence.  The Department of Corrections shall provide a copy of the prerelease probation report to the attorney for the offender and the prosecuting attorney at the same time it provides the report to the court.
  3. If the Commissioner of Corrections believes the offender has violated a condition imposed under subsection (a) of this section, he or she may recommend a change to the original probation order.  In this case, the court shall schedule a modification hearing prior to the release date.  The court may modify the conditions or add further requirements as authorized by section 252 of this title.  The offender shall have a reasonable opportunity to contest the modification prior to its imposition.  The prosecuting attorney shall represent the State in connection with any proceeding held in accordance with this section.

HISTORY: Added 2009, No. 1 , § 38.

§ 253. Modification of conditions; revocations.

  1. During the period of probation, the court, on application of a probation officer or of the offender, or on its own motion, may modify the requirements imposed upon the offender or add further requirements authorized by section 252 of this title.
  2. Whenever the court proposes any modification of the conditions of probation, the probationer shall have a reasonable opportunity to contest the modification prior to its imposition.
  3. [Repealed.]

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1981, No. 223 (Adj. Sess.), § 19; 2003, No. 57 , § 8, eff. July 1, 2004.

History

Amendments

—2003. Subsec. (c): Repealed.

—1981 (Adj. Sess.). Added “; revocations” at the end of the section heading. Subsec. (c): Added.

Prior law.

28 V.S.A. § 1209 .

Expiration of 2003 amendment. 2003, No. 57 , § 16 provides for the repeal of the 2003 amendment to this section which effectively repealed subsec. (c) on July 1, 2007.

Effective date of 2003 amendment. 2003, No. 57 , § 15 provides that Sec. 8 of that act which repeals subsec. (c) of this section shall take effect on July 1, 2004.

ANNOTATIONS

Jurisdiction.

Court did not have jurisdiction to act on defendant’s failure to live up to conditions of his probation where defendant’s prescribed probationary period had already terminated without the filing of a complaint or the issuance of an arrest warrant. State v. White, 150 Vt. 132, 549 A.2d 1069, 1988 Vt. LEXIS 105 (1988).

Particular conditions.

Where a probation condition proscribed defendant’s interaction with all children under the age of sixteen, but made no mention of specific public locations or events where children are often present, by prohibiting defendant from attending a fair, his probation officer converted the probation condition from a contact-based condition to a location-based condition, and in so doing, the officer crossed the line between condition interpretation and modification. State v. Rivers, 2005 VT 65, 178 Vt. 180, 878 A.2d 1070, 2005 Vt. LEXIS 145 (2005).

Prerequisites.

At a minimum, a significant change in a probationer’s circumstances must be established to provide a sufficient cause for imposing harsher or more restrictive conditions on a probationary sentence. State v. Day, 147 Vt. 93, 511 A.2d 995, 1986 Vt. LEXIS 361 (1986).

—Generally.

Defendant failed in his argument that the court was without authority to both increase the portion of his sentence to serve and reimpose his probation with added conditions because each of these actions is granted by separate subdivisions of 28 V.S.A. § 304(b) . No reason can be found why the powers contained in the subsection must be mutually exclusive, and, in any event, the court’s authority to add probation conditions is also granted by subsection (a) of this section, and there is no indication in this section that it cannot be used along with other powers. State v. Woolbert, 2007 VT 26, 181 Vt. 619, 926 A.2d 626, 2007 Vt. LEXIS 52 (2007) (mem.).

Where defendant’s challenge to a condition of probation came five months after it was imposed, there was no error in the trial court’s denial of defendant’s pro se motion to modify. State v. Klunder, 2005 VT 130, 179 Vt. 563, 892 A.2d 927, 2005 Vt. LEXIS 313 (2005) (mem.).

The Legislature placed the power to impose probation conditions on the court, and not on the corrections department and its employees; similarly, the power to modify probation conditions also rests exclusively with the courts. State v. Rivers, 2005 VT 65, 178 Vt. 180, 878 A.2d 1070, 2005 Vt. LEXIS 145 (2005).

Probation conditions contained in a sentence represent a contract between the probationer and the court; the court may modify those conditions where the modification is sought by the defendant. State v. Whitchurch, 155 Vt. 134, 577 A.2d 690, 1990 Vt. LEXIS 90 (1990).

Since a probation agreement is contractual, changing the terms of probation without either the probationer’s consent or a change in circumstances betrays the justifiable expectation that the agreement will be honored. State v. Day, 147 Vt. 93, 511 A.2d 995, 1986 Vt. LEXIS 361 (1986).

Cited.

Cited in State v. Sanborn, 155 Vt. 430, 584 A.2d 1148, 1990 Vt. LEXIS 236 (1990).

§ 254. Attendance at treatment facility.

  1. The court may require a person as a condition of probation to participate as a resident or nonresident in programs at a treatment center for all or part of the period of probation, provided that the Commissioner certifies that adequate treatment facilities, personnel, and programs are available. If the Commissioner determines that the person’s residence in the center or participation in its programs, or both, should be terminated, because the person can derive no further significant benefits from such residence or participation, or both, or because his or her residence or participation adversely affects the rehabilitation of other residents or participants, he or she shall so notify the court, which shall thereupon, by order, make such other provision with respect to the person on probation as it deems appropriate.
  2. A person residing in or participating in a program at a treatment center shall be required to abide by the rules and regulations of the center and may be required to pay such cost incident to residence as the Commissioner deems appropriate.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Cited.

Cited in State v. Sanborn, 155 Vt. 430, 584 A.2d 1148, 1990 Vt. LEXIS 236 (1990).

§ 255. Discharge.

  1. Upon the termination of the period of probation or the earlier discharge of the probationer in accordance with section 251 of this title, the probationer shall, unless the court has ordered otherwise or under 13 V.S.A. § 7043(l) , be relieved of any obligations imposed by the order of the court and shall have satisfied the sentence for the crime.
  2. [Repealed.]
  3. A court hearing shall be held prior to discharging an offender from probation for a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 2001, No. 134 (Adj. Sess.), § 6; 2003, No. 57 , § 9, eff. July 1, 2004; 2009, No. 1 , § 41.

History

Revision note

—2016. In subsec. (a), removed a reference to subsec. (b), which was repealed by 2003, No. 57 , § 9.

Amendments

—2009. Added the subsec. (a) designation and added subsec. (c).

—2003. Subsec. (b): Repealed.

—2001 (Adj. Sess.) Subsec. (a): added the (a) designation, inserted “unless the court has ordered otherwise under subsection (b) of this section or under subsection 7043(l) of Title 13”, and substituted “the sentence” for “his sentence”; and added subsec. (b).

ANNOTATIONS

Consecutive sentences.

When a prisoner on probation is convicted of a subsequent offense, criterion imposed by section 7032 of Title 13, governing imposition of consecutive sentences, that a subsequent conviction must occur before the defendant has been discharged from a prior sentence, must be read with reference to section 251 of this title, governing duration of probation, and this section; together, they permit a subsequent court, in its discretion, to impose a sentence consecutive to probation. In re Hough, 143 Vt. 15, 458 A.2d 1134, 1983 Vt. LEXIS 447 (1983).

Construction.

Under Model Penal Code upon which Vermont statute is based, where sentence is made a condition of probation and the probationer is discharged before the sentence is served, the defendant does not have to serve the sentence because the state could no longer enforce the probation condition. State v. Papazoni, 159 Vt. 578, 622 A.2d 501, 1993 Vt. LEXIS 9 (1993).

Where conviction for driving under the influence, death resulting, resulted in sentence of 3 to 15 years, all suspended except one year of prison which was stayed pending an appeal during which time defendant completed probation and was discharged, argument was rejected that discharge from probation relieved defendant of all further obligations for the crime, including the one-year prison sentence; despite plain meaning, statute providing that upon fulfillment of probationary obligation a defendant shall have satisfied his sentence for the crime and cannot be required to fulfill his prison sentence does not apply to split sentences since such construction would be irrational and contrary to legislative intent of model penal provision from which statute derived. State v. Papazoni, 159 Vt. 578, 622 A.2d 501, 1993 Vt. LEXIS 9 (1993).

Extension of probation.

Without provision of notice to defendant of her violation of probation during its term, court was without authority to extend defendant’s probation after it had expired. State v. Murray, 159 Vt. 198, 617 A.2d 135, 1992 Vt. LEXIS 137 (1992).

Prescribed period of probation.

In cases where the period of probation is prescribed by the sentencing court, discharge from probation is automatic upon the expiration of the period. State v. White, 150 Vt. 132, 549 A.2d 1069, 1988 Vt. LEXIS 105 (1988).

Cited.

Cited in United States v. Tomasi, 313 F.3d 653, 2002 U.S. App. LEXIS 24495 (2d Cir. 2002).

§ 256. Graduated sanctions for technical violations.

  1. At any time before the discharge of the probationer or the termination of the period of probation if, in the judgment of the Commissioner, the probationer has violated a condition or conditions of his or her probation, other than a condition that the probationer pay restitution to the Department or a violation which constitutes a new crime, the Commissioner may sanction the probationer in accordance with rules adopted pursuant to subsection (b) of this section.  However, no probationer shall be incarcerated except pursuant to the provisions of subchapter 3 of this chapter.
  2. The Department of Corrections shall adopt rules pursuant to 3 V.S.A. chapter 25 that establish graduated sanction guidelines for probation violations as an alternative to arrest or citation under section 301 of this title.

HISTORY: Added 2009, No. 146 (Adj. Sess.), § D8.

Subchapter 3. Revocation of Probation

§ 301. Summons or arrest of probationer.

At any time before the discharge of the probationer or the termination of the period of probation:

  1. Summons or warrant for arrest.   The court may summon the probationer to appear before it or may issue a warrant for his or her arrest.
  2. Arrest or citation of person on probation.   Any correctional officer may arrest a probationer without a warrant if, in the judgment of the correctional officer, the probationer has violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution; or may deputize any other law enforcement officer to arrest a probationer without a warrant by giving him or her a written statement setting forth that the probationer has, in the judgment of the correctional officer, violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution. The written statement delivered with the person by the arresting officer to the supervising officer of the correctional facility to which the person is brought for detention shall be sufficient warrant for detaining him or her. In lieu of arrest, a correctional officer may issue a probationer a citation to appear for arraignment. In deciding whether to arrest or issue a citation, an officer shall consider whether issuance of a citation will reasonably ensure the probationer’s appearance at future proceedings and reasonably protect the public.
  3. No right of action.   Any probationer arrested and detained in accordance with the provisions of this chapter shall have no right of action against any law enforcement officer, correctional officer, employee of the Department of Corrections, or any other persons because of such arrest and detention.
  4. Detention pending hearing for probationer.   Pending arraignment for any charge of violation, the probationer shall be detained at a correctional facility unless issued a citation by a correctional officer. Thereafter, the court may release the probationer pursuant to 13 V.S.A. § 7554 . There shall be no right to bail or release, unless the person is on probation for a nonviolent misdemeanor or nonviolent felony.
  5. Release of certain persons on probation for nonviolent offenses.   su
    1. At arraignment, if the court finds that bail or conditions of release will reasonably ensure the probationer’s appearance at future proceedings and conditions of release will reasonably protect the public, the court shall release a probationer who is on probation for a nonviolent misdemeanor or nonviolent felony pursuant to 13 V.S.A. § 7554 .
    2. As used in this section:
      1. “Nonviolent felony” means a felony offense that is not a listed crime as defined in 13 V.S.A. § 5301(7) or an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64.
      2. “Nonviolent misdemeanor” means a misdemeanor offense that is not a listed crime as defined in 13 V.S.A. § 5301(7) or an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64 or 13 V.S.A. § 1030 .

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48 , § 2; 1997, No. 148 (Adj. Sess.), § 89, eff. April 29, 1998; 1997, No. 152 (Adj. Sess.), § 4; 2003, No. 57 , § 10, eff. July 1, 2004; 2009, No. 157 (Adj. Sess.), § 5; 2017, No. 62 , § 2; 2019, No. 131 (Adj. Sess.), § 283.

History

Revision note

—2013. In subdiv. (4), in the fourth sentence, substituted “As used in” for “For purposes of” to conform to V.S.A. style.

Amendments

—2019 (Adj. Sess.). Subdiv. (1): Added the subdiv. heading.

Subdiv. (5): Added the subdiv. heading.

—2017. Subdiv. (2): Inserted “or citation” following “Arrest” in the first sentence; and added the fourth and fifth sentences.

Subdiv. (4): Deleted “continue to” preceding “be detained” and added “unless issued a citation by a correction officer” following “facility” in the first sentence, and deleted “and the probation violation did not constitute a new crime” following “nonviolent felony” in the third sentence.

Subdiv. (5): Amended generally.

—2009 (Adj. Sess.) Subdiv. (4): Amended generally.

—2003. Added “other than a condition that the probationer pay restitution” following “his or her probation”.

—1997 (Adj. Sess.). Act No. 152 added subdiv. headings and added “or her” after “him” and “his” throughout the section.

Subdiv. (2): Act No. 152 substituted “correctional officer” for “probation officer” in two places, added “if, in the judgment of the correctional officer, the probationer has violated a condition or conditions of his or her probation” and substituted “to arrest a probationer without a warrant” for “to do so” in the first sentence, and substituted “the person” for “the probationer” and for “he” in the second sentence.

Subdiv. (3): Act No. 152 substituted “any law enforcement officer, correctional officer, employee of the department of corrections” for “the probation officer”.

Subdiv. (4): Act No. 152 substituted the current provisions for “The commissioner or any employee acting under his direction may apprehend and detain the probationer under the authority of the warrant issued by the court which placed the offender on probation, in accordance with section 203 of this title.”

Act No. 148, amending Act No. 152, substituted “arraignment for” for “a hearing on the merits upon” and added the last two sentences.

—1973. Deleted former subdiv. (2) and redesignated former subdivs. (3)-(5) as (2)-(4).

Prior law.

28 V.S.A. § 1218 .

ANNOTATIONS

Bail.

Defendants who fit the statutory criteria of the statute regarding detention of a probationer following a charge of a violation have a statutory right to bail or release, and the conditions of that release should be determined by a consideration of the factors in the pretrial release statute. It remains the case that the court has discretion to release any probationer, but those probationers with a right to bail may not be held without bail. State v. Kane, 2016 VT 121, 203 Vt. 652, 160 A.3d 1020, 2016 Vt. LEXIS 127 (2016) (mem.).

Because defendant’s underlying crime was a nonviolent felony and her probation violations—failing to meet with her probation officer, failing to keep a curfew, failing to report a change of address, and failing to comply with electronic monitoring—did not amount to new crimes, defendant had a right to conditions of release. State v. Kane, 2016 VT 121, 203 Vt. 652, 160 A.3d 1020, 2016 Vt. LEXIS 127 (2016) (mem.).

Execution of warrant.

One year delay in executing warrant for defendant’s arrest for a probation violation was not barred by this section. State v. Ellis, 149 Vt. 264, 542 A.2d 279, 1988 Vt. LEXIS 10 (1988).

Jurisdiction.

Court did not have jurisdiction to act on defendant’s failure to live up to conditions of his probation where defendant’s prescribed probationary period had already terminated without the filing of a complaint or the issuance of an arrest warrant. State v. White, 150 Vt. 132, 549 A.2d 1069, 1988 Vt. LEXIS 105 (1988).

Notice to probationer.

Without provision of notice to defendant of her violation of probation during its term, court was without authority to extend defendant’s probation after it had expired. State v. Murray, 159 Vt. 198, 617 A.2d 135, 1992 Vt. LEXIS 137 (1992).

Violations before commencement of probation term.

Probation may be revoked for acts committed by a defendant after imposition of the sentence but before commencement of the probationary term. State v. St. Francis, 160 Vt. 352, 628 A.2d 556, 1993 Vt. LEXIS 51 (1993).

§ 302. Notice; hearing.

  1. The court shall not revoke probation without a proceeding conducted in open court.  The procedure of such hearing shall include:
    1. the probationer has violated one or more conditions of probation;
    2. aprior written notice to the probationer stating the alleged violation with which he or she is charged and that he or she has a right to legal counsel at the hearing;
    3. the right to legal counsel if requested by the probationer to be assigned by the court in the same manner as in criminal cases;
    4. establishment of the alleged violation by a preponderance of the evidence by the State, if the probationer contests the allegation in open court;
    5. the maintenance of a record of the proceeding, which shall be preserved in such a manner that it can be transcribed as needed.
  2. An order revoking probation shall be appealable in the same manner as would be applicable to his or her original conviction.
  3. The State shall have the right to be represented by counsel in any revocation hearing.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48 , § 3.

History

Amendments

—1973. Subdiv. (a)(1): Deleted “or” following “probation”.

CROSS REFERENCES

Preliminary hearing and revocation hearing, see Rule 32.1(a), Vermont Rules of Criminal Procedure.

ANNOTATIONS

Findings.

The fact that findings of a court at a probation revocation hearing are oral and transcribed, rather than prepared and typed subsequent to the hearing, does not alter the legal standard of appellate review; in either case, if the findings are deficient, a case may be remanded to the trial court for correction. State v. Allen, 145 Vt. 593, 496 A.2d 168, 1985 Vt. LEXIS 329 (1985).

A probationer’s federal due process rights are adequately protected when a court states its essential findings at a probation revocation hearing on the record. State v. Allen, 145 Vt. 593, 496 A.2d 168, 1985 Vt. LEXIS 329 (1985).

Hearsay evidence.

Hearsay evidence admitted by the trial court in a probation revocation hearing with regard to defendant’s discharge from a residential treatment facility did not meet any of the traditional guarantees of trustworthiness. There was no evidence to corroborate the hearsay allegations regarding defendant’s misbehavior at the facility; the evidence contained judgments and conclusions, not objective facts; and the hearsay allegations were not factually detailed, but rather stated as general statements and conclusions. State v. Decoteau, 2007 VT 94, 182 Vt. 433, 940 A.2d 661, 2007 Vt. LEXIS 242 (2007).

Relief.

After a revocation of probation, defendant’s proper avenue for relief is through an appeal or habeas corpus proceeding. State v. Therrien, 140 Vt. 625, 442 A.2d 1299, 1982 Vt. LEXIS 470 (1982).

Permitting a motion for reconsideration of sentence under section 7042 of Title 13 after a revocation of probation would unnecessarily burden the revocation proceeding and unjustifiably give the defendant another chance to attack his original sentence. State v. Therrien, 140 Vt. 625, 442 A.2d 1299, 1982 Vt. LEXIS 470 (1982).

Sufficiency of evidence.

Defendant’s delay in completing a domestic violence program and his refusal to admit to the conduct underlying his offense at the intake interview in violation of program requirements were sufficient to support the probation violation found by the trial court and the extension of the probation term by an additional year. State v. Provost, 2014 VT 86, 2014 Vt. LEXIS 87 (Vt. 2014), op. withdrawn, sub. op., 2014 VT 86A, 199 Vt. 568, 133 A.3d 826, 2015 Vt. LEXIS 74 (2015).

Cited.

Cited in State v. Bushey, 149 Vt. 378, 543 A.2d 1327, 1988 Vt. LEXIS 25 (1988); State v. Millard, 149 Vt. 384, 543 A.2d 700, 1988 Vt. LEXIS 40 (1988).

§ 303. Grounds for revocation.

  1. Probation shall not be revoked unless the probationer violates a condition of his or her probation or is convicted of another crime.  The violation or conviction shall be both a necessary and a sufficient ground for the revocation of probation.
  2. The court shall not revoke probation and order the confinement of the probationer unless the court finds on the basis of the original offense and the intervening conduct of the probationer that:
    1. confinement is necessary to protect the community from further criminal activity by the probationer;
    2. the probationer is in need of correctional treatment which can most effectively be provided if he or she is confined; or
    3. it would unduly depreciate the seriousness of the violation if probation were not revoked.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Generally.

Probation is intended to allow a defendant opportunity for rehabilitation at the same time it protects society; revocation of probation will result when continuation of probation conditions would be at odds with need to protect public and society’s interest in rehabilitation, in other words, when rehabilitative purposes of probation have failed and defendant is a threat to society. State v. Lockwood, 160 Vt. 547, 632 A.2d 655, 1993 Vt. LEXIS 90 (1993).

Conviction of another crime.

Where defendant was convicted in New York for driving while impaired, in violation of New York Vehicle and Traffic Law § 1192(1), the fact that Vermont had no crime specifically denominated as driving while impaired did not necessitate reversal of trial court’s revocation of defendant’s probation for violation of probationary condition that he not be convicted of another offense. State v. Bushey, 149 Vt. 378, 543 A.2d 1327, 1988 Vt. LEXIS 25 (1988).

Where defendant was convicted in New York for operating “a motor vehicle while his ability to operate such motor vehicle [was] impaired by the consumption of alcohol,” in violation of New York Vehicle and Traffic Law § 1192(1), there were sufficient similarities between the New York offense and section 1201(a)(2) of Title 23, prohibiting driving while under the influence of intoxicating liquor, to justify trial court’s revocation of defendant’s probation for violation of probationary condition that he not be convicted of another offense. State v. Bushey, 149 Vt. 378, 543 A.2d 1327, 1988 Vt. LEXIS 25 (1988).

Findings.

A court revoking probation need not specifically identify which of the alternatives set forth in subsection (b) of this section it has employed so long as at least one readily supports the court’s conclusion. State v. Millard, 149 Vt. 384, 543 A.2d 700, 1988 Vt. LEXIS 40 (1988).

Where a probationer fails to attend alcohol abuse treatment sessions imposed as a condition of probation, a court may find that he is in need of correctional treatment. State v. Millard, 149 Vt. 384, 543 A.2d 700, 1988 Vt. LEXIS 40 (1988).

Finding of court which revoked appellant’s probation that appellant had a severe alcohol problem and that probation could not help him was in all practical respects a finding that he was in need of correctional treatment which could best be provided by incarceration and satisfied requirement of subsection (b) of this section that court make one of three specific findings before it may revoke probation. State v. Allen, 145 Vt. 593, 496 A.2d 168, 1985 Vt. LEXIS 329 (1985).

Jurisdiction.

Fact that defendant was in the process of challenging a probation condition did not prevent the State from filing a complaint based on an alleged violation of the condition or deprive the court of jurisdiction to find a violation of such a condition. State v. Bailey, 2010 VT 21, 187 Vt. 624, 992 A.2d 320, 2010 Vt. LEXIS 23 (2010) (mem.).

Procedure.

In a probation violation case, an administrative judge properly refused to presume bias of the trial judge based on the trial judge’s comments at the original sentencing hearing, where the trial judge had warned defendant that if he did not abide by the probation conditions, he would see to it that he would serve as much of the remaining sentence as possible. While the comments could have been better phrased, they appeared to be a warning to defendant to abide by his probation conditions. State v. Bailey, 2010 VT 21, 187 Vt. 624, 992 A.2d 320, 2010 Vt. LEXIS 23 (2010) (mem.).

Violation of condition of probation.

Following the establishment of a violation of probation the trial court erred in revoking defendant’s probation and modifying his sentence without obtaining defendant’s waiver. In re Jankowski, 2016 VT 112, 203 Vt. 418, 157 A.3d 573, 2016 Vt. LEXIS 115 (2016).

As the trial court was not reviewing a programming decision of the Department of Corrections or its internal consequences, but was deciding whether to revoke defendant’s probation, remand was required when the trial court failed to determine whether defendant had violated a rule against physical violence or threats of physical violence, and when it did not exercise its discretion to determine whether the alleged violation was such that revocation should be ordered. State v. Cavett, 2015 VT 91, 199 Vt. 546, 126 A.3d 1287, 2015 Vt. LEXIS 68 (2015).

There was sufficient proof that defendant violated a probation condition that he not have relationships with people with children under 18. Although there was no direct proof that a woman whom defendant had been seeing had children under 18, it could be inferred from defendant’s volunteering the information that they lived with their father out of state that they were minors; the trial court’s conclusion that defendant had a relationship with the woman was also supported by evidence that he had exchanged phone numbers with her, borrowed her car, and bought roses for her. State v. Amidon, 2010 VT 46, 2010 VT 46A, 188 Vt. 617, 8 A.3d 1050, 2010 Vt. LEXIS 83 (2010) (mem.).

Trial court did not err in revoking defendant’s probation when it found that he had violated four conditions of probation, including one that he not have friendships or relationships with people who had children under the age of 18. There was sufficient evidence from the context of a remark by defendant that the children of an acquaintance were under age 18; defendant was procedurally barred from challenging the findings of violation, as his argument was not raised during the sentencing phase or during the evidentiary hearing; defendant’s challenge to one of the four violations found did not implicate the validity of the entire proceeding; and defendant had waived his right to collaterally attack the condition in question by failing to challenge that condition after conviction. State v. Amidon, 2010 VT 46, 2010 VT 46A, 188 Vt. 617, 8 A.3d 1050, 2010 Vt. LEXIS 83 (2010) (mem.).

Defendant, whose probation required him not to initiate or maintain contact with children under 18, was not found to have violated the condition based merely on incidental proximity contact in a public place. The evidence demonstrated that on a number of occasions defendant visited his son’s residence, where he knew young grandchildren would be, and visited in the yard in the midst of the children; that some of these visits lasted hours; and that defendant freely mingled with the children. State v. Bailey, 2010 VT 21, 187 Vt. 624, 992 A.2d 320, 2010 Vt. LEXIS 23 (2010) (mem.).

Term “mingle” means more than proximity contact; rather, as defined in a dictionary, it means, “to associate or unite, as . . . persons by ties of relationship; to join in company.” Therefore, defendant’s conduct of freely mingling with children at his son’s residence exceeded “mere proximity” to the prohibited class and violated a probation condition that required defendant not to initiate or maintain contact with children under 18. State v. Bailey, 2010 VT 21, 187 Vt. 624, 992 A.2d 320, 2010 Vt. LEXIS 23 (2010) (mem.).

By visiting his family at their home and staying for periods of up to two hours, during which time he mingled with underage family members, defendant plainly initiated and maintained contact with members of the prohibited class in violation of a probation condition that he not initiate or maintain contact with children under 18. State v. Bailey, 2010 VT 21, 187 Vt. 624, 992 A.2d 320, 2010 Vt. LEXIS 23 (2010) (mem.).

Because the question of whether verbal threats constituted threatening behavior in the context of probation conditions had not been decided by the court, any error of law the trial court might have made in revoking defendant’s probation for verbally threatening his landlord was not obvious. Thus, there was no plain error, and the court did not have to reach defendant’s claim that his curfew violations alone, which he did not contest, did not support revocation. State v. Gilbert, 2009 VT 7, 185 Vt. 602, 969 A.2d 125, 2009 Vt. LEXIS 5 (2009) (mem.).

Mildly retarded adult defendant’s alleged inability to comply with conditions of probation at time of violation did not bar revocation of his probation, where evidence did not support defendant’s argument that performance of probation warrant was impossible, and court took defendant’s mental capacity into consideration at revocation hearing. State v. Lockwood, 160 Vt. 547, 632 A.2d 655, 1993 Vt. LEXIS 90 (1993).

Where defendant was convicted in New York for operating “a motor vehicle while his ability to operate such vehicle [was] impaired by the consumption of alcohol,” in violation of New York Vehicle and Traffic Law § 1192(1), trial court did not abuse its discretion in revoking defendant’s probation for violation of probationary condition that he not use alcoholic beverages to the extent that they interfered with his employment or the welfare of his family, himself, or any other person, since defendant posed a possible danger to the welfare of both himself and others by his operation of a motor vehicle while his ability to operate that vehicle was impaired by his consumption of alcohol. State v. Bushey, 149 Vt. 378, 543 A.2d 1327, 1988 Vt. LEXIS 25 (1988).

Cited.

Cited in State v. Peck, 149 Vt. 617, 547 A.2d 1329, 1988 Vt. LEXIS 88 (1988); State v. DeRosa, 161 Vt. 78, 633 A.2d 277, 1993 Vt. LEXIS 93 (1993).

§ 304. Disposition alternatives upon violation of probation.

  1. If a violation is established by a proceeding conducted in accordance with section 302 of this title, the court may, in its discretion, revoke probation and require the probationer to serve the sentence that was suspended or order that the sentence be served in the community pursuant to the provisions of chapter 6 of this title.
  2. As an alternative to revocation and imposition of sentence as provided in subsection (a) of this section, the court, in its discretion, after a violation has been established, may:
    1. continue the probationer on the existing sentence;
    2. effect, in accordance with subsection 253(b) of this title, necessary or desirable changes or enlargements in the conditions of probation;
    3. conduct a formal or informal conference with the probationer in order to reemphasize to him or her the necessity of compliance with the conditions of probation;
    4. issue a formal or informal warning to the probationer that further violations may result in revocation of probation by the court; or
    5. continue the probationer on the existing sentence, but require the probationer to serve any portion of the sentence.
  3. Prior to ordering either revocation or an alternative sanction for a violation of probation in accordance with subsection (b) of this section, the court shall consider, but has complete discretion whether to follow, sanction guidelines established by the Department of Corrections pursuant to subsection (e) of this section.
  4. No plea agreement shall limit the court’s discretion under this section.
  5. The Department of Corrections shall adopt rules pursuant to 3 V.S.A. chapter 25 that establish graduated sanction guidelines for probation violations as an alternative to revocation and imposition of the original sentence. These guidelines do not grant the Department any authority to impose sanctions for probation violations.

HISTORY: Added 1971, No. 199 (Adj. Sess.), § 20; amended 1989, No. 291 (Adj. Sess.), § 5; amended 2001, No. 124 (Adj. Sess.), § 12, eff. June 5, 2002; 2005, No. 63 , § 8.

History

Amendments

—2005. Added new subsec. (c), redesignated former subsec. (c) as subsec. (d) and added subsec. (e).

—2001 (Adj. Sess.). Subdiv. (b)(2): Substituted “subsection 253(b)” for “section 253(b)”.

Subdiv. (b)(3): Substituted “reemphasize to him or her” for “re-emphasize to him”.

Subdiv. (b)(5): Added.

Subsec. (c): Added.

—1989 (Adj. Sess.). Subsec. (a): Added “or order that the sentence be served in the community pursuant to the provisions of chapter 6 of this title” following “suspended”.

Effective date of amendment; motion to reconsider. 2001, No. 124 (Adj. Sess.), § 14(b) provides: “Any probation revocation imposed after January 27, 2002 and before the effective date [June 5, 2002] of Sec. 12 [which amended this section] of this act may be subject to a motion to reconsider the disposition. In deciding the motion, the court shall have the authority to impose any portion of the underlying sentence pursuant to subdivision 304(b)(5) of Title 28. A motion to reconsider under this subsection shall be filed within 90 days of the effective date [June 5, 2002] of Sec. 12 of this act.”

Prior law.

28 V.S.A. § 1216 .

CROSS REFERENCES

Reduction of sentence upon revocation of probation, see Rule 35(b), Vermont Rules of Criminal Procedure.

ANNOTATIONS

Alteration of sentence.

Since all four of defendant’s sentences were to be served concurrently, trial court acted improperly in severing defendant’s sentence on one charge after he admitted violating conditions of his probation, where effect was to alter defendant’s sentence on that charge from concurrent to consecutive, to be served after he was released from incarceration on other three charges. State v. Draper, 167 Vt. 636, 712 A.2d 894, 1998 Vt. LEXIS 136 (1998) (mem.).

Defendant’s delay in completing a domestic violence program and his refusal to admit to the conduct underlying his offense at the intake interview in violation of program requirements were sufficient to support the probation violation found by the trial court and the extension of the probation term by an additional year. State v. Provost, 2014 VT 86, 2014 Vt. LEXIS 87 (Vt. 2014), op. withdrawn, sub. op., 2014 VT 86A, 199 Vt. 568, 133 A.3d 826, 2015 Vt. LEXIS 74 (2015).

Construction.

Defendant failed in his argument that the court was without authority to both increase the portion of his sentence to serve and reimpose his probation with added conditions because each of these actions is granted by separate subdivisions of subsection (b). No reason can be found why the powers contained in the subsection must be mutually exclusive, and, in any event, the court’s authority to add probation conditions is also granted by 28 V.S.A. § 253(a) , and there is no indication in that section that it cannot be used along with other powers. State v. Woolbert, 2007 VT 26, 181 Vt. 619, 926 A.2d 626, 2007 Vt. LEXIS 52 (2007) (mem.).

Trial court’s sentencing power, once it has found a violation of probation, is limited to the alternatives explicitly laid out in subsection (a) of this section. State v. Pratt, 173 Vt. 562, 795 A.2d 1148, 2002 Vt. LEXIS 4 (2002) (mem.).

The language of subsection (a) of this section, when read together with 28 V.S.A. § 205(a) , did not impliedly give the option to the sentencing court to suspend part of the underlying sentence. State v. Pratt, 173 Vt. 562, 795 A.2d 1148, 2002 Vt. LEXIS 4 (2002) (mem.).

Discretionary language in 28 V.S.A. § 304 conflicted with mandatory and more specific language in 13 V.S.A. § 7041 , and therefore trial court properly ruled that it was required to impose sentence after finding defendant violated a condition of probation outlined in his deferred-sentence agreement. State v. Rafuse, 168 Vt. 631, 726 A.2d 18, 1998 Vt. LEXIS 402 (1998) (mem.).

Discretion of court.

Absent a showing that the trial court abused or withheld its discretion, the enforcement of the original sentence after a finding of violation of probation is without error. State v. Peck, 149 Vt. 617, 547 A.2d 1329, 1988 Vt. LEXIS 88 (1988).

When a violation of probation is established, the trial court has discretion to revoke probation and require the original sentence to be served, continue probation, or alter the conditions of probation. State v. Therrien, 140 Vt. 625, 442 A.2d 1299, 1982 Vt. LEXIS 470 (1982).

Particular cases.

Following the establishment of a violation of probation the trial court erred in revoking defendant’s probation and modifying his sentence without obtaining defendant’s waiver. In re Jankowski, 2016 VT 112, 203 Vt. 418, 157 A.3d 573, 2016 Vt. LEXIS 115 (2016).

discretionofcourtparticularcases