Under Rule 5.102, a sending state may not execute retaking while a supervised individual is serving a sentence for a new offense in the receiving state. Retaking may occur only after the criminal charges have been dismissed, the new sentence has been satisfied, or the individual has been released to supervision for the subsequent offense, unless both states mutually agree to an earlier retaking.
These timing requirements may create delays between the commission of a new offense and the sending state’s ability to address violation behavior. Similar delays may arise when the supervised individual is subject to supervision in the receiving state for a separate offense and both matters must be resolved before retaking may occur.
Rule 5.101-2 provides a discretionary mechanism that permits the sending state to address certain out-of-state convictions or violations more promptly. With approval from the appropriate sentencing or releasing authority and the supervised individual’s consent, the sending state may conduct an electronic or in-person proceeding to resolve the violation or conviction occurring outside its jurisdiction. The sending state must notify the receiving state of the proceeding and provide the results within ten (10) business days.
If the disposition in the receiving state fully satisfies the sending state’s sentence, or results only in continued supervision, Rule 5.101-2(b) specifies that retaking may not be necessary. However, if the new disposition includes incarceration that does not fully satisfy the sending state’s sentence, retaking may be required under the applicable provisions of Rules 5.102 or 5.103.
Accordingly, Rule 5.101-2 facilitates timely resolution of out-of-state convictions or violations while maintaining compliance with the compact’s mandatory retaking provisions. One case emphasizing the discretionary nature of Rule 5.101-2 is McKenzie v. Commonwealth, No. 2023-CA-0073-MR, 2024 WL 4244464, *2 (Ky. Ct. App. Sept. 20, 2024). In another case, State v. Sanborn, No. CR-07-2091, 2019 Me. Super. LEXIS 25 (Cumberland Cty. Me. Super. Ct. Jan. 28, 2019), the sending state did not comply with the ICAOS rules for retaking; however, because the compact is not a source of rights for supervised individuals, the court concluded that the violation did not relieve the supervised individual of his probation in this case. The 2025 clarifications to Rule 5.101-2 clarify retaking procedures to minimize future violations.
PRACTICE NOTE