An offender convicted of a new conviction in the receiving state forming the basis for retaking is not entitled to further hearings, the conviction being conclusive as to the status of the offender’s violations of supervision and the right of the sending state to retake. In this circumstance, there is no need to conduct a probable cause hearing subsequent to the court proceedings simply to make a new (and virtually identical) record for transmission to the sending state. See D’Amato v. U.S. Parole Com’n, 837 F.2d 72, 79 (2d Cir. 1988)
It is important to emphasize the distinction between retaking that may result in revocation and retaking that will not result in revocation. When there is no danger that the sending state will revoke the offender’s probation or parole supervision, the offender is not entitled to a probable cause proceeding prior to retaking. As previously discussed, an offender has no right to supervision in another state and the sending state retains the right under the ICAOS to retake an offender for any or no reason. See Paull v. Park County, 218 P.3d 1198 (S. Ct. Mt. 2009). For example, a sending state may retake an offender because the offender has failed to comply with a condition. The failure to meet a condition may cause officials in the sending and receiving states to conclude that the offender would be better supervised in the sending state. By contrast, however, if there is any question regarding the intent of the sending state to revoke an offender’s conditional release based on violations in the receiving state, the offender should be given a probable cause hearing as provided in Rule 5.108. Failure to do so may bar consideration of those violations in subsequent revocation proceedings in the sending state.
PRACTICE NOTE: An offender convicted of committing a new revocable criminal offense in the receiving state is not entitled to a probable cause hearing, the official judgment of the court is sufficient to trigger retaking by the sending state and subsequent revocation of release.
Click terms below to reveal definitions used in this rule.
Probable Cause Hearing – a hearing in compliance with the decisions of the U.S. Supreme Court, conducted on behalf of an offender accused of violating the terms or conditions of the offender‘s parole or probation.
Retaking – means the act of a sending state in physically removing an offender, or causing to have an offender removed, from a receiving state.